FEDERAL COURT OF AUSTRALIA

Ariix LLC v Mahilall [2014] FCA 429

THE COURT ORDERS THAT:

1.    The applicant file and serve proposed orders to give effect to the reasons of Rares J delivered on 27 March 2014, on or before 1 April 2014.

THE COURT ORDERS THAT:

2.    The respondent file and serve proposed orders to give effect to the reasons of Rares J delivered on 27 March 2014, on or before 12:00 pm on 3 April 2014.

3.    The proceedings be stood over until 4 April 2014.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1    The applicant, Ariix LLC, is a limited liability company organised under the laws of the State of Utah in the United States of America. It develops and distributes health and wellness products, such as nutritional supplements, energy supplements, water filters and health foods. It does so using multi-level marketing, or MLM. Multi-level marketing involves distributors being paid commissions on both the products they sell and the products sold by other distributors in their respective organisations. Ariix has offices in the United States, Japan, Hong Kong and Taiwan, but not in Australia. During 2012, its annual revenue was approximately USD32 million, and its products were sold in 14 countries. These proceedings involve a number of very serious allegations made on the internet in the first half of July 2013 against Ariix, senior officers of Ariix and some of its distributors.

2    The respondent is Dhaneel Mahilall. He denies that any of the things of which Ariix complains were done by him. He asserts that it is possible that someone, such as a hacker or other malicious person, gained access to information stored on one of the following, namely, his computers, a hard drive, a USB stick, or a Cloud storage system. He claims that one of those means could have enabled that other person to use to his email addresses and Facebook account and then use that means to impersonate him in the cyber world.

3    To avoid confusion in these reasons, I will refer to the respondent by that designation. I will refer to the evidence concerning the person using the name Dhaneel Mahilall, or a variant of it, as Mr Mahilall, that is, the person who is said to have carried out the activities complained of, because of the central question whether or not that person was, in fact, the respondent or an impersonator.

4    The respondent is 30 years old and, because of the attacks made on his character and credibility in the course of the proceedings, he has relied on evidence that he is a person of good character given in references by two witnesses who know him, and his lack of any criminal record. Having seen and heard from him in the witness box and in the difficult task of representing himself in these proceedings, he is obviously an intelligent person who has some not inconsiderable skills in using computers and computer programs.

The issues

5    Ariix seeks to rely on three causes of action to seek injunctive relief so as to prevent further repetition of the injurious material being published on the internet, and the making of threats to extort, or attempt to extort, money from it. The causes of action are that the respondent contravened s 18 of the Australian Consumer Law in Sch 2 to the Competition and Consumer Act 2012 (Cth), committed the tort of injurious falsehood and attempted to commit the tort of intimidation. Ariix also seeks damages and an order that a domain name registered and owned by the respondent, ariixcorporate.com, and email addresses using @ariixcorporate.com, be transferred to it.

Background

6    Many of the essential facts, other than the identity of the person responsible for the conduct complained of, are not seriously in dispute.

7    Usana Health Sciences Inc is a company in the same field of business as Ariix. Ariix uses the name “Ariix Corporate” to designate communications that emanate from its head office, as opposed to any of its independent sales distributors or customers. It also uses that business name in its newsletters, on Twitter, and in blogs that emanate from Ariix. Some of Ariix’ senior executives, including Dr Fred Cooper, its chief executive officer, Mark Wilson, its president, and Jeffrey Yates, its chief financial officer, had previously worked for Usana before establishing Ariix in early January 2011.

8    On 20 September 2011, the respondent registered two domain names with a company called Crazy Domains FZ-LLC that runs a service called “Whois”. That service provides domain names that can be used on the internet to establish websites and domains. The first name he registered was usanaaustralia.com for the two year period commencing 20 September 2011. He provided publicly searchable registration details that disclosed his own name as the registrant, and owner, of that name, a post office box at Homebush South, his mobile telephone number and the email address dhaneelmahilall@hotmail.com.

9    He also registered a second domain name, ariixcorporate.com, this time however for a three-year period. The registrant of that name was publicly disclosed as “Private Registration”, with a different post office box located in Sydney South, a different phone landline number, together with the email address domains@privateregistryauthority.com.

10    The respondent had an association with Usana and saw a business opportunity in Australia through the registration of both companies’ domain names in the way I have just described.

Mr Mahilall’s first attempt to sell ariixcorporate.com

11    On 2 December 2012, a person using the email address mahilalld@gmail.com emailed customer support at Ariix. The email informed Ariix that the author owned the domain name, ariixcorporate.com, and said that he had been advertising it on a few websites to other Ariix distributors or marketers. It said that he had been offered AUD450 by a generic MLM sales trainer. The sender of the email asked whether Ariix would like to offer something higher for the domain name.

12    The email found its way to Tyler Jones, Ariix’ internal corporate lawyer. Mr Jones responded to “Dhaneel” in an email he sent on 4 December 2012 addressed to the mahilalld@gmail.com account. He asked how much Dhaneel wanted for the domain name. A response came on 5 December 2012 from the same email address without any signature saying that the writer had had 11 offers. He offered to sell the domain name for AUD475 or above and sought a response. The next day, Mr Jones responded offering USD525 which, at that time, was approximately AUD501. He asked whether that was acceptable and, if so, said that he would arrange for payment so that the transfer of the URL could be made.

13    Shortly afterwards on 6 December 2012, the person using the gmail account responded saying that the offer sounded good and that that person would speak to his bank and domain host to find out exactly how the transfer should take place, signing off “Best Regards, Dhaneel”. However, within about eight hours, Dhaneel sent a further email to Mr Jones apologising for “the misunderstanding” and saying that he could not go ahead due to other circumstances. The evidence does not reveal whether Mr Jones’ inquiry in response as to what had changed was ever answered. The respondent denies that he was the sender or recipient of any of those emails.

The second sales attempt

14    The dates in the following account may be a little confused because some of the emails had American dating and others Australian, there being a substantial time difference between Salt Lake City and Sydney. On 4 July 2013, an email was sent from support@ariixcorporate.com to support@ariix.com, and copied to email addresses using the ariixcorporate.com domain name for Dr Cooper, Mr Wilson and a Tim Sales, a lead distributor of Ariix. A further copy of that email was addressed to dhaneel@dhaneel.com.au, being an email address actually used by the respondent. The email was headed “Important: Immediate attention required”. The email asserted that the sender owned, and was currently using, the www.ariixcorporate.com website and associated email addresses. He said that those associated email addresses had been made for his pet goldfish with the same names as Dr Cooper and the other human addressees of the email at Ariix. The sender asserted that he owned any other email address that he could ever think of at @ariixcorprate.com and continued:

“Currently the website www.ariixcorporate.com is currently pointed to another site. Check it out.”

15    The sender said that he was selling the ariixcorporate.com domain name for USD110,000 and that he wanted that price exactly. The sender said that if that price was not paid, something else would happen. The sender asserted that:

“Currently money is my concern. If you don’t buy it, I will not sell to anyone else anyway, I will SEO [search engine optimise] it up good and do many extremely creative things. trust me I am creative. Amongst other things I may obviously redirect some of Ariix clients somewhere else.” (bolding and explanation of “SEO” added)

16    The email then suggested that the ariixcorporate web page could be a page about four “goldfish” with the names of the senior executives of Ariix and “just indepth views about what I think about these goldfish”. It suggested there would be a profile on them and that the sender would invite others to put up videos and views on the site, but that he would choose the best ones, or: “who knows it may be something a lot more creative”. The email then continued:

“You will definitely want to protect this website from me. It will absolutely not be safe in my hands. I can guarantee you that. it needs protection from me. If you knew my history you will want to buy this now. Im very creative. You will not want my pet Gold Fish, Fred Cooper sending messages to any of your distributors, because who knows, they may actually get him mixed up with the other Fred Cooper. If we don’t agree on this price I will control this domain forever. Forever is a long while. Let me know a yes or a no. For me I have everything to gain. For you, you have some to lose.

I want the sale immediately. Do not take me lightly. Get your solicitors onto this so we can exchange funds and domain name promptly.

Dhaneel Mahilall.” (emphasis added)

17    The email’s reference to www.ariixcorporate.com being “currently pointed to another site” was a reference to a redirection that operated when a person sought to access the www.ariixcorporate.com site through a web browser. The redirection caused the viewer’s web browser to open a pornography site, known as RedTube, that displayed very graphic pornographic images immediately the RedTube screen opened. The email then had a postscript stating that the author had created a new email address for Mr Sales. The author said that he was not giving the recipients a timeframe but that they would not want to make him wait long.

18    Shortly afterwards, Mr Mahilall sent a second email to customer support at Ariix with copies to Dr Cooper, Mr Wilson and Mr Sales at the ariixcorporate.com domain addresses. The “from” line indicated that it was sent from the email address dhaneelmahilall@hotmail.com and that line included the words: “On behalf of Dhaneel Mahilall”. The latter email address was again a real email address that the respondent was using at the time. This email had the same heading as the previous one, and said that the first video testimonial about Ariix’ products had just been received to go onto the www.ariixcorporate.com website “… [i]f it is to go ahead and not be sold as in the previous email below”. The email stated that a person on the video testimonial said:

“I have tried Ariix products, and to be honest, I will never try them again. I actually got quite sick on them, and so did my girlfriend. we just threw up. I feel it was a COMPLETE waste of money. the products just smelt funny, it tasted BAD. who would take Ariix?! A BIG THUMBS DOWN!”

The email concluded with a comment “powerful video testimonial”.

19    As can be seen, these two emails were obviously threatening to Ariix. They sought to have it pay money to the author under the threat that there would be more to come if Ariix did not capitulate to the sender’s demands. The next day, Mr Wilson received a notification from Facebook, a social networking site, that informed him of a link shared on Ariix Corporate’s timeline with the description:

“check out the new site www.ariixcorporate.com WOW…”

20    Ariix has a page on Facebook in the name of Ariix Corporate that serves a marketing purpose of informing its customers and public generally about its products and to interact with the company. Thus, by the next day, persons who went to Ariix’ Facebook page would be enticed to click onto the offending URL and be directed to the RedTube site.

21    A private message to Mr Wilson’s Facebook account on 5 July 2013 appeared to have been sent from Dhaneel Mahilall’s Facebook profile. That message had a picture of the respondent with his dog adjacent to his name. The Facebook posting was addressed to Mark, presumably Mr Wilson, and asserted that the poster owned and operated a Facebook page in the name of www.ariixcorporate.com. It invited Mr Wilson to “[c]heck it out” saying that he already had some material on it and that he was selling the site for USD150,000 at the moment. It asked Mr Wilson to let the poster know if he was interested in purchasing it and that: “I have a whole lot more info coming up on it. thanks champ.” It continued that there would be testimonials on it which were negative and “… unfortunately they COULD be detrimental to your business. I have all races speaking out and all ages. get back to me champ”. The poster then made references to the fish, and reasserted his demand for USD150,000.

22    Mr Mahilall had also sent other emails threatening further action. In an email to Ms Allen-Johnson of 5 July 2013, headed “Sale of Ariix website”, he said that he was considering renewing his rights to the URL he was using to carry out this activity for a further nine years. He said that his current asking price was USD140,000 “and it is going up quickly”.

23    On 6 July 2013, Dhaneel Mahilall at support@ariixcorporate.com sent an email to a Rick Billings who was a lead distributor for Ariix, as were Lynn Allen-Johnson, Dr Queeney Tang, and Werner Berger. The email was also signed “Dhaneel”. Its heading was “www.ariixcorporate.com PRELAUNCH”. It referred to Mr Billings as being one of the founders of Ariix and advised him that the sender wanted to let Mr Billings know about “… an awesome website that I am creating at www.ariixcorporate.com”. The sender said that the purpose of that website would be to divulge and celebrate the origins of Ariix, its founders and their activities six months before they launched the company, and that many people may not have been privy to that information. Dhaneel asserted that the website would “be HUGE” and would have lots of information and over 100 video testimonials: “… unfortunately a lot of them seem to have had NEGATIVE experiences with Ariix.” The email again referred to the fact that the new website had been pointed “... to one of my favourite sites, just so people can have a bit of fun viewing it”. In a PS, it said that the sender was selling the site as well, so that if Dr Cooper and he wanted to buy it that would be “... great, the price is currently $140,000USD” but threatened that the price would be going up, as more work was being done on the site and that shortly it would be off the market.

24    People within Ariix and its distributor network were beginning to log onto the new website only to discover that it diverted to the RedTube site. Later, on 6 July 2013, a person using the dhaneelmahilall@hotmail.com email address sent an email to Ariix saying that he was purchasing an active MLM mailing list of over 250,000 names, but that this expense would be worth it to get the new website out with testimonials. The sender said that he had people working on the design and doing video recordings and would reach a range of people with platforms like Twitter, Facebook, LinkedIn, and so on. He asserted that the price would go up to USD200,000 “next Tuesday” (i.e. 9 July 2013).

25    Dhaneel Mahilall was also counteracting Ariix’ attempts to deal with his disruptive postings on Facebook. In an email of 7 July 2013, another person associated with Ariix, Deanna Latson, noted that Mr Mahilall was “bombing us in social media. And his links go to a porn site”. She inquired of other Ariix recipients of her email whether anyone knew Mr Mahilall from Usana. She said that he had “… bombed our Facebook page yesterday and left us this message: ‘I see you just deleted my post about www.ariixcorporate.com hahaha well I’m writing now to all your members telling them about this fun and exciting website. Ive hit 10 members already, I will copy you guys into the mails from now. My price now is up to $140,000 for the domain. thank you. you waste time buying domain, it goes up. send this message to Fred and the gang!’.”

26    On 7 July 2013, Dhaneel Mahilall’s Facebook account messaged Mr Wilson’s Facebook account, posting a video and link with the description: “Ariix Products are TERRIBLE” together with a statement “Ariix Products are really bad! They quote them as quality, but I would not give them to my dog”. Beyond this description, there was no detail of the content of that YouTube video in evidence. The same user sent contemporaneously a Facebook message to Mr Wilson saying that he had only just begun, and that this video was one of the few hundred examples of what, effectively, the poster was going to do. He then said that he wanted USD160,000 and hoped that Mr Wilson would enjoy the video. Also on 7 July 2013, the Dhaneel Mahilall Hotmail email account was used to send an email with a copy of the same video to Ariix with a demand for USD150,000.

27    By 9 July 2013, Mr Billings had emailed a complaint to Mr Jones that 80% of his YouTube marketing videos had been tagged “age-restricted”. That had the effect of suggesting that, rather than being marketing videos, they contained matter that was not suitable for general viewing.

28    On 9 July 2013, the support@ariixcorporate.com email address sent an email in the name of Dhaneel Mahilall to a number of persons associated with Ariix distributors, including Dr Queeney Tang, informing them of his website. Mr Mahilall said that he had not joined Ariix, but that everyone was talking about negative things about that company, its products and founders. He referred to a YouTube video and the fact that he had (supposedly) done research and wondered why everyone was leaving Ariix and saying negative things about it. The email continued that the sender had attended a financial seminar in Sydney, Australia, where, he asserted 250 people had put up their hands saying, “We hate Ariix”. He continued by saying that, in Australia, a company like that would never exist for more than a minute, “people hate these sorts of disloyal thiefs [sic] and cheats”. It advised Dr Tang to warn all her friends about Ariix and invited her to watch two YouTube videos that were provided as links in the email, neither of which was in evidence. It was signed by Dhaneel Mahilall.

29    Mr Mahilall sent another email on 9 July 2013 from the mahilalld@gmail.com account to an Ariix distributor called Gabriel Osorio. He had an internet alias “David Dork” and was an independent contractor of Ariix. This email formed part of a chain that was in abusive terms between the two. One significant statement in the email chain was that if Mr Dork thought that the sender did not “have what it takes”, he should ring the retailer, Costco, in Auburn, a suburb of Sydney. That retailer was part of an international chain. Mr Mahilall suggested that Mr Dork ask Costco about its interaction with Mr Mahilall.

30    By 9 July 2013, Mr Jones lodged a complaint under the Uniform Name Dispute Resolution Policy with the Internet Corporation for Assigned Names and Numbers (ICANN) about the use of the ariixcorporate.com URL. Mr Jones emailed the notification of the complaint to dhaneelmahilall@hotmail.com and mahilalld@gmail.com, the latter being the email address that had appeared in the exchange of correspondence in December 2012.

31    Mr Mahilall responded from the Hotmail account soon afterwards on 10 July 2013, saying that his price for the domain had increased to USD400,000. He invited Mr Jones to call him on an Australian mobile number, which was that of the respondent, if he wanted to discuss anything about the sale, albeit the number given erroneously contained the area code “2” after the Australian country code.

32    Ariix busied itself in seeking to minimise some of the damage by search engine optimisation strategies to force the response for ariixcorporate.com’s URL lower down in search engine results pages.

33    By 10 July 2013, Mr Mahilall had adopted a new stratagem. He used a pseudonym, or had a person representing herself to be, Cassie J Doll, to send emails to various persons associated with Ariix and to create another YouTube video. She sent her first email headed “Ariix exposed on Youtube …” to a number of recipients, including Mr Billings. The email had a link to the YouTube video. The YouTube description of the video in Cassie Doll’s email was headed: “Ariix: The Shocking Truth, about Fred Cooper and Mark Wilson”. It asserted that Cassie Doll and her family had been wronged by Ariix’ founders, and that the video was merely a small introduction to what was to follow as a documentary that she was working on and was expected to be released in August. That video showed a young woman who said:

“I completely dislike everything Ariix stands for. I have no respect for the founders Fred Cooper and Mark Wilson especially. They have completely disrespected me and my family, lied, deceived us on, every level. I’ve lost everything. I urge everyone to dissociate with them and their company for their own sake.”

34    The email asserted that the documentary would be about Cassie Doll and seven other young women in a similar situation, and would display something that was disgusting. It was signed off “Cassie aka ‘the Celtic Dancer’”. When one goes to YouTube to view it, the web browser displays a page with a description of the video as well as an icon to click on to start playing the video.

35    On 11 July 2013, Cassie Doll sent another email with the title “Marko rages at Ariix” to an undisclosed number of persons. She again referred to the supposed documentary and said that, as she was speaking out against Ariix, other people were coming forward, including her friend “Marko”, who had been allegedly hung high and dry by “Ariix and the band of thieves”. This email made a number of other disparaging references to Ariix and attached a link to another YouTube video in which Marko engaged in what might be described as a rant against Ariix and its senior executives, making accusations that they were “the devil”, “Satan” and asserting that viewers should stay away from Ariix and also from those who founded it.

36    On 12 July 2013, Cassie Doll sent a third YouTube video in emails with the heading: “Ariix almost bankrupt, Fred Cooper spend [sic] fortune on teenage brothels”. The email attached a further YouTube video and made very disparaging assertions about senior executives at Ariix, asserting that persons would not want their loved ones to fall “prey to these sadistic men”. Cassie Doll asked the readers to share the video with women in their lives. That video depicted another young woman who said her name was Jodie Roberts, from California, who wanted to talk about Ariix, “which is probably the worst company in existence.” She also continued by making a large number of very disparaging assertions about Ariix.

37    As it turned out, at least two of the persons who participated in the last three YouTube videos that I described appear to have been recruited by the videos’ creator(s) from an internet operation called “Fiverr”. Fiverr offered its users the ability to hire actors or other persons for as little as $5 to promote products or perform services. Marko and Jodie Roberts both appear to have been actors who advertised their services on Fiverr.

38    By 12 July 2013, people within the Ariix customer support section sent an email to Mr Wilson, Mr Jones, Mr Yates and others suggesting that they had received feedback from agents, which I assume were external distributors associated with Ariix, about the safety of the persons working in the Ariix customer support office.

39    Mr Mahilall ratcheted matters up another notch on 13 July 2013 when he sent Mr Jones an email copied to three addresses apparently associated with the religion of Islam, including the American Islamic Congress. The heading of the email related to Ariix’ complaint to ICANN. The email asserted that Mr Mahilall was a Muslim and that Mr Jones had engaged in “strong hate … against muslims” and was trying to steal Mr Mahilall’s website from him simply because he was of the Muslim faith. It made a number of further inflammatory allegations against Mr Jones and sought to invoke the support of the Islamic organisations who were its addressees. The email was signed by Mr Mahilall as “OWNER and Operator of www.ariixcorporate.com -- CURRENTLY SHARING THE BEAUTIFUL FAITH OF ISLAM. (ON SALE: $400,000 usd)”. However, this time the URL was not linked to the RedTube site but rather to a web page of IslamiCity that informed its viewers that it had already brought the positive message of Islam to more than 167 million people. No doubt, Mr Mahilall intended by linking, in this way, to a new redirected web address, to escalate pressure on Ariix to comply with his demands.

40    Shortly afterwards on 13 July 2013, Dhaneel Mahilall sent a further email to the same recipients warning Mr Jones that he should not attempt to delete his evidence of Islamic hate mail towards him. Mr Mahilall said that he had four written and video testimonials from degree-qualified IT professionals and computer systems engineers from the Universities of New South Wales and Sydney, “confirming the source of emails from yourself concretely and conclusively! Any attempt to cover this up from [sic] your behalf will be seen as obstructing the course of Justice”.

41    No information technology professionals have been called to give evidence in these proceedings by the respondent.

42    At the time all this activity was occurring, Ariix was engaged in a corporate merger negotiations with another organisation from the same industry called RevvNRG. The purpose of the merger was to seek to have RevvNRG’s distributors take up selling Ariix products once their own company’s stocks of its products had been exhausted. One of those distributors, a Mr Ron Laker, expressed concerns about the material on the internet and YouTube that I have described. This caused Mr Wilson to write an email to Mr Laker on 13 July 2013 denying the truth of all the allegations, informing him that work was being done so as to search engine optimise results to suppress that material. Mr Wilson sought to assure Mr Laker that Mr Wilson and his colleagues were happily married, in normal relationships and not capable of being described in the way in which the farrago of material sent out by Mr Mahilall and Cassie Doll described.

43    On 13 July 2013, Cassie Doll made a comment on Facebook on a post titled “Ariix PureNourish Product Review by Dr. O”. She implored her readers that the three YouTube videos for which she gave links in the email that I have described, involving her, Marko and Jodie Roberts, should be viewed, and warned everyone to dissociate themselves from Ariix. She asserted that a full report would be coming and that Ariix’ founders, who were named, were involved in fraud, corruption, teenage orgies and partner swapping to build Ariix’ business which she labelled “a long time tradition in Mormon culture”. She asserted that her readers should warn their friends and family so that their loved ones would not fall prey to these allegedly sadistic men and that, especially, they should share the video of Jodie Roberts that referred to alleged satanic rituals with women in their lives.

44    Later that day, Cassie Doll sent her last email headed “Fred Cooper solicits teen for Mormon orgy”. This repeated the same material as the Facebook comment.

45    Things fell silent until 16 July 2013, when Mr Mahilall sent an email to Mr Jones from his Hotmail account headed “hey dude”. That said:

“Hows everything on your end. hows the family and work treating you?? did anything fun this weekend?”

46    The sign off line in this email gave the respondent’s local mobile phone number, his dhaneel@dhaneel.com.au email address, and the post office box at Homebush South that he had used on the registration form for the usanaaustralia.com domain name in its address line.

47    During the course of trying to work out where the offending material had originated, Mr Osorio found that the persons sending emails from the cassiejdoll@gmail.com account and the mahilalld@gmail accounts had used a rotating private proxy that defaulted to the same IP address. According to the Internet Assigned Numbers Authority, that IP address was not assigned to any particular person, but its use indicated that the emails were likely to have been sent from computers on the same internal network.

48    The respondent submitted that this might have indicated nothing more than that the match found by Mr Osorio had simply identified a common source within the Ariix organisation of persons forwarding those emails on the one network rather than identifying where the origin of those emails was.

49    Whatever the true explanation of the internet path, it is fairly safe to assume that the emails were sent by Mr Mahilall or someone associated with him.

50    There is not a skerrick of evidence to suggest that any of Mr Mahilall’s or his associates’ allegations against Ariix or the persons associated with it that are set out in these reasons have any truth in them at all. The respondent did not seek to establish any such allegation in his case. It is clear, however, that the emails, Facebook postings and YouTube videos were designed to cause serious damage to the reputation and standing of Ariix, together with the other persons named in them as associated with it, and that the person or persons responsible for their creation engaged in this conduct for the purpose of giving substance to the threats that, unless money was paid in the amounts demanded, things would get worse, as they clearly did.

These proceedings begin

51    Ariix commenced these proceedings on 16 July 2013. On that day, Yates J granted ex parte injunctive relief prohibiting activities of the kind engaged in by Mr Mahilall and his associates described above up to and including 19 July 2013, when the proceedings were returnable before his Honour. His Honour ordered that service be effected by 5 pm the next day by, among other means, serving the respondent at the address that had been found for him in Homebush, and the email addresses dhaneelmahillal@hotmail.com, mahillald@gmail.com, support@ariixcorporate.com, and dhaneel@dhaneel.com.au. Ariix served the respondent personally in accordance with his Honour’s orders around 5 pm on 17 July 2013 in addition to serving Mr Mahilall by emails sent to the four email addresses referred to in his Honour’s order.

52    By about 12.15 pm on 18 July 2013, the three YouTube videos by Cassie Doll, Marko and Jodie Roberts had been removed from YouTube. If a person wished to look at them, he or she was advised that the uploaders had closed their YouTube accounts. Also, by 8.40 am on 19 July 2013, the website www.ariixcorporate.com had been removed and was no longer accessible on the internet.

53    The proceedings came back before Yates J at 2.15 pm on 19 July 2013. On that occasion, the respondent attended Court personally and his Honour made consent orders that extended the ex parte injunctions until further order.

54    At no time between then and 1 November 2013, including, at the subsequent directions hearings before me on 25 July 2013 and 18 October 2013, and in his interactions with the solicitors acting for, or with officers of, Ariix, did the respondent suggest that he was not in any way responsible for any of the activities that appeared to have been conducted in his name, the subject of the evidence that I have described above. In particular, the respondent never denied in that period that he had any responsibility for any of that conduct.

55    On 14 August 2013, the arbitrator appointed by ICANN to deal with the complaint made by Ariix as to the use of the ariixcorporate.com URL determined that the URL should be transferred from the respondent to Ariix. However, the respondent did not participate in the arbitration and has not transferred the URL.

Mr Yates’ evidence

56     Mr Yates gave evidence, in his first affidavit sworn 2 October 2013, that he had been Ariix’ chief financial officer and a manager since the company had been incorporated on 4 January 2011. He said that he had held a position of vice president and chief financial officer for Usana from September 2008 to January 2011. In cross-examination, he admitted that he had in fact ceased to work at Usana on 10 May 2011.

57    Mr Yates described some of the disruption that Ariix had experienced, internally, and also externally with its distributors, as a result of Mr Mahilall’s activities in early to mid-July described above. He said that Ariix’ customer services had spent the first half of July 2013 having to deal with queries from customers and distributors about various emails from Mr Mahilall, and the Facebook and YouTube publications. He said that Ariix’ information technology staff had spent some time dealing with the internet consequences of that conduct, as had Mr Jones. He said that, on 10 July 2013, Ariix had hired Mr Osorio to attempt to minimise any negative effect on it on the internet, and had paid him USD4,500 for that activity. Mr Yates said that, in his experience, negative publicity had the potential to dissuade prospective customers from considering Ariix and to discourage new distributors from joining it. However he gave no evidence, in any admissible form, of any economic loss suffered by Ariix, either actual or prospective.

58    Importantly, Mr Yates said that, on 17 July 2013, at about shortly after midnight in Utah, Dr Cooper called his mobile phone, then added Mr Jones on another phone, and they had a conference call. Dr Cooper had arranged to have them join the call he planned to make to Mr Mahilall on his Australian mobile number. Dr Cooper then called Mr Mahilall and a conversation took place. Only Dr Cooper spoke and the respondent was not informed that any other persons were listening on the phone. Mr Yates’ evidence of that conversation was first given in his affidavit of 13 November 2013 that was sworn after the respondent’s affidavit of 1 November 2013. Mr Yates said that after Dr Cooper had identified that he was talking to the respondent, they had a conversation, relevantly, to the following effect:

“Dr Cooper:        Is this Dhaneel Mahilall?

The respondent:    Yes.

Dr Cooper:        My name is Fred Cooper. I don’t know if you actually know who I am, but it would seem that you do. I am the CEO of Ariix. I am calling about the website you have created and all the threatening and offensive emails you have been sending to our Representatives. But first, could you please tell me what I have done to you to make you contact our employees, representatives and customers?

The respondent:    I want to sell the Ariix Corporate website.

Dr Cooper:        I understand, but why have you attacked us like this?

The respondent:    I just want to sell the website.

Dr Cooper:    You have made that very clear, and you have demanded an exorbitant fee. How much will it really take to get this site from you?

The respondent:    Well, the price goes up daily, and continue to do so. Today, the price is $400,000.

Dr Cooper:    If I paid this, what would it get me?

The respondent:    You will get the website.

Dr Cooper:    Anything else?

The respondent:    You won’t hear from me again.

Dr Cooper:    What does this mean?

The respondent:    I will stop the emails and take down the videos if the $400,000 is paid.

Dr Cooper:    Which videos?

The respondent:    The ones with the man and woman complaining about Ariix.

Dr Cooper:    Will you stop emailing our leaders and not post any more videos, including through this Cassie person?

The respondent:     Yes it will all stop.

Dr Cooper:    Are you sure? Will it definitely all stop if we pay the $400,000?

The respondent:    I can assure you that it will all stop. You have my word.

Dr Cooper:    How do we know that you are the one controlling all of this? What if you are just trying to get money out of us and then nothing changes?

The respondent:    No, I have complete influence over all of it, I can make it all go away.

Dr Cooper:    Why would you lie about me when you don’t even know me? What did I ever do to you?

The respondent:    I want to sell the website.

Dr Cooper:    OK. We understand. We will have to meet to consider what you have proposed. Goodbye.

The respondent:    Goodbye.” (emphasis added)

The respondent’s evidence

59    In his affidavit sworn on 23 November 2013, the respondent agreed that he had spoken to Dr Cooper but said that he had had more than one conversation with him. He said that, in one conversation, Dr Cooper was abrupt and started speaking about the videos and emails. The respondent asserted that he did not know what Dr Cooper was talking about. He said that on another occasion Dr Cooper had called him, demanding that he “admit it” and that he, the respondent, had replied that he did not know what Dr Cooper was talking about. On the third occasion, Dr Cooper had allegedly mentioned something about a person called Brad who would not be happy and neither would the respondent’s family, by which the respondent claimed to have felt threatened.

60    Perhaps because he was a litigant in person, the respondent feared asking Mr Yates any questions about Mr Yates’ version of the conversation. He said that he had not asked questions because he thought that that might make Mr Yates’ evidence of the conversation more authoritative in evidence. I think that was probably a correct explanation of the respondent’s reasoning process so that he failed to realise that it was important to cross-examine Mr Yates on that topic, if he was to suggest that Mr Yates’ evidence of the conversation should not be accepted. Mr Yates’ evidence was filed apparently in response to the respondent’s lengthy affidavit of 1 November 2013, in which he effectively asserted for the first time that none of the conduct complained of was due to him and offered a number of different explanations for it.

61    The respondent said that he had held Ariix in very high regard prior to the commencement of the proceedings. He said that he had known a lot about Usana’s senior management, that some members of that management had left to form Ariix and that he did not see any problem with that. He claimed that he had admired Dr Cooper from afar and attributed a large measure of Usana’s commercial success to Dr Cooper’s contribution. The respondent also knew of a number of the other senior people at Ariix with whom the communications complained of occurred. He said that he had purchased the ariixcorporate.com domain name because of his views about Ariix and liking them as he did, with the hope that one day in the future, he would join Ariix and utilise that domain name to promote Ariix products.

62    Next, the respondent identified an amount of material that he had found on the internet to suggest that, as he would have it, a large number of persons had expressed negative views about Ariix and that one or more of those persons might be the malicious imposter who had used his name to engage in the activities of which Ariix complained in these proceedings. There was some evidence of such a class of hostile persons who had expressed themselves on the internet adversely to Ariix and about its business practices.

63    The respondent said that he could not work out how the events of the first half of July had come about. He suggested that he had been the victim of identity theft, that a hacker may have opportunistically hacked into his computer system and, thus, was able to obtain the information necessary to carry out the activities complained of. He pointed to the fact that identity theft and hacking were well-known phenomena in the cyber world and this may have been a reason why he had been the victim of such a person who had impersonated him. He referred to his having had a number of contacts with people online and that any of them may have been able to have found out information about him initially online and also subsequently by accessing his private information in one way or another.

64    The respondent also identified three other possible means by which a person may have obtained sufficiently detailed information about the email addresses using variants of his name, the Usana and ariixcorporate domain names that he had purchased and how that person may have accessed or controlled and his Facebook account.

65    The first of those means was through accessing his old HP desktop computer that he had purchased in 2001. He said he sold this in about October or November 2012 through the online Gumtree website to a man whose name he did not know. The respondent said that he had backed up, on that computer, his personal files, including passwords for emails, social media accounts, banking details and the like and that he had taken “the necessary precautions” and had deleted all his files off its main drive. However, he was not sure whether he had also emptied the recycle or trash bin of the computer so as to delete that information completely.

66    Secondly, the respondent said that, in April 2013, he had visited a gaming room at an internet cafÉ in Burwood, near to where he lived, to play video games, and that on that visit, he had had a USB stick with him through which he was listening to recorded music. He said that the USB stick also had all his personal files on it, including passwords and the same type of information as had been on the desktop computer. He said that, when he left his seat to go for a drink or get a breath of fresh air he left the USB stick there, only to find that it had gone when he returned. He said he noticed a number of persons who were acting suspiciously around where he had been.

67    The third possible source of information for an impersonator, identified by the respondent, was a person whom he met at a social networking occasion in May 2013 at an hotel in Surry Hills. The respondent said that he had with him a WD hard drive on which he, again, kept all his personal details and other material. He said that he spoke to a man called Ed, or Ted, who wished to copy some personal development material that the respondent said that he also had on the hard drive. He said that he allowed Ed, or Ted, to do so, by connecting his laptop to the hard drive. As the downloading operation was taking place, the respondent began talking to other people and said that only some time later did he notice that Ed, or Ted, had disappeared, leaving the hard drive discarded on a nearby table. He considered this to be a very strange event, but only a few days later realised that, when he tried to access the hard drive, it was not working and appeared to have been damaged.

68    The respondent denied emphatically that he had anything to do with the activities complained of. He said that he was very scared after being served with the proceedings, not only about the Court case and having been, as he said, wrongly accused, but about whoever had had his personal information so as to equip that person to be able to conduct those activities. He was afraid that the hackers, or whoever they were, might come to his house and attack him if he told anyone that he was not involved. He said that he was paralysed with fear.

69    After the proceedings commenced, the respondent had a number of exchanges of emails with the solicitors for Ariix. On 23 July 2013, shortly before 25 July 2013, the first time the matter was before me, the respondent wrote an email to the solicitors for Ariix. That was after he had consented to the ex parte injunctions being extended by Yates J. He said in that email that he was “hoping we could wrap everything up before” the next return date before me, and sought to have the proposed final orders so that he could sign them.

70     On 21 August 2013, he emailed the solicitors for Ariix asserting that they should ask:

“mr perfect if he is so perfect and good, why his website was created on January 12th and he only resigned in May 10?”

That email continued by making disparaging remarks about the honesty of the person, whom I assume was one of the founders of Ariix since they, including Mr Yates, had apparently established Ariix in January 2011, but only resigned from Usana on 10 May 2011.

71    The respondent engaged in a number of very offensive and abusive emails that could be described as tirades against the solicitors and counsel for Ariix. On 11 October 2013, he wrote an email of this nature to the solicitors for Ariix that stated that they did not go to law school to defend criminals and that that was what they were then doing. He also made racist and derogatory allegations about a partner in the firm of the solicitors acting for Ariix, including describing that solicitor as “my nigga”. When cross-examined, among other things, about whether an allegation of soliciting teens for a Mormon orgy or describing someone such as the solicitor I have just mentioned as “my nigga” was offensive, he made prevaricating responses.

72    The respondent’s answer to a notice to produce filed on 5 February 2014 consisted of producing a suitcase full of material, none of which comprised anything relevant to the documents called for in the notice. The notice included calls for his bank and credit card statements at relevant times, but he produced nothing in answer. Some of the material in the suitcase was obviously prepared by the respondent for the purpose of providing some form of (non) response to the notice to produce, such as derogatory drawings about lawyers acting for Ariix. The respondent also included in the material in the suitcase a closely handwritten A3 page of material which he said had been his supposed instructions to a computer expert, whose evidence he had unsuccessfully tried to have admitted, to find out whether his computer had been hacked or his information taken.

73    After Chris Nielsen, one of the solicitors acting for Ariix, had given evidence in the case and been cross-examined, the respondent sent a derogatory email to him. The email contained an attachment that comprised various cut and paste representations of a former Australian politician, Pauline Hanson, and derogatory references to Mr Nielsen that the attachment attributed to her.

Consideration

74    At the end of the day, a striking feature of this case is that the respondent’s denials of any involvement in the conduct complained of do not appear to have any coherence with the immediate cessation of all of the activity complained of very soon after he had been served with the ex parte injunctions on 17 July 2013, and the absence of any suggestion that further threats or activity of this kind has occurred since the respondent was served. Whoever was conducting the activity in the first half of July 2013 came from Sydney. That is because a number of the emails internally state localities in that city.

75    I have formed the view that I cannot accept any of the evidence of the respondent unless it is corroborated independently by other evidence. He is, as I have said, an intelligent person. He has engaged in a number of activities that make it plain that he was the person behind the conduct complained of.

76    It is beyond belief that someone could have effectively hijacked all of the respondent’s email accounts, his Facebook account, and computers, and produced what occurred in either or both December 2012 and July 2013 without the respondent having any contemporaneous awareness of it.

77    The present proceedings involve in one sense a circumstantial case being made by Ariix. That is because the respondent raised the issue of a possible imposter and no independent forensic evidence has linked him directly as the author or instigator of much of the conduct complained of. In evaluating whether an inference or finding of responsibility can be made against a respondent in such a case, a court can weigh the united force of all of the circumstances put together. It is not appropriate to isolate each instance relied on without considering the admissible evidence as a whole. The Court must not look at the evidence in a circumstantial case in a piecemeal way: Reg v Hillier (2007) 228 CLR 618 at 638 [48] per Gummow, Hayne and Crennan JJ.

78    I find that the concatenation of material associated with the respondent being the source demonstrates that, indeed, it was him. Moreover, it is also telling that he did not attempt, with all his resourcefulness, to obtain evidence even from the providers of the various email accounts, such as Gmail or Hotmail, that were in his own name that he had created, or the others in names resembling his to establish a basis for his denials of being responsible for the emails coming from those sources. I reject his claim that an impersonator engaged in the conduct complained of including organising the YouTube videos.

79    The respondent had considerable resource in computer technology and use. For example, he took down or removed his own name from his Facebook page after the conduct complained of and substituted another name, Dma Hilal, on that medium in its place. However, the respondent denied that he had a Facebook page at all, although at one point he lapsed into an admission that he did, as I find to be the case. The Facebook page of Dma Hilal uses the same URL as the respondent had using his own name, Dhaneel Mahilall, when he posted the Facebook message of 7 July 2013 to Mr Wilson. That message demanded USD160,000 as the then -rice for the ariixcorporate.com domain name. The same source also messaged the “Ariix Products are terrible” video on 7 July 2013 on Mr Wilson’s Facebook account.

80    During his cross-examination, the respondent asserted, for the first time, that he had contacted first, the police, secondly, Facebook and, thirdly, Microsoft about his Hotmail account to obtain assistance in negating the allegations against him. He said that, while he had opened the Hotmail account, he was not actively using it in July 2013 and could not remember his passwords. He said that he had written to Microsoft about the activity on that account but had not received a response. He claimed to have included that correspondence with Microsoft in the suitcase in answer to the notice to produce. However, he did not identify any such document in the suitcase. He began, but later gave up, a search of the suitcase during an adjournment. I find that his evidence about enquiring of Microsoft was false.

81    The notice to produce was instructive in itself. It asked for, among other things, copies of bank statements and credit card statements in his name operated in the periods between 1 September 2011 and 30 October 2011 and 1 May 2013 and 19 July 2013. He produced nothing in answer to that call, plainly evading his obligation to do so. He was also required to produce all the emails that he had received and sent from the email addresses in question in the proceedings. He produced none. He was required to produce his telephone records for the period between 1 May 2013 and 19 July 2013 for the mobile phone he used in connection with the matters complained of and, again, produced nothing.

82    I am satisfied that the respondent very carefully avoided producing anything in answer to the notice to produce that he considered might damage him in order to evade furnishing any evidence that might establish his responsibility for the conduct complained of. During the course of his evidence, the respondent was very anxious to disassociate himself from any of the documentary material that bore his name or associated him with any of the activities complained of, so much so that he at one point, when asked whether a document that bore the name Dhaneel Mahilall was using his name, said: “That’s how I represent myself as”.

83    Most particularly, his failure immediately on being served to deny any involvement in the matters alleged against him is telling. I do not accept that the respondent was scared to do so because of a fear of reprisals from hackers or impersonations or otherwise. His vitriolic and derogatory correspondence with the solicitors for Ariix is similar to the vitriol and threats evident in the material complained of that was posted on Facebook and sent to Ariix and others in July 2013.

84    During the hearing, the respondent filed an affidavit in which he said that he purchased a computer program on the internet that allowed him to send emails that appeared to come from one email address, but in reality came from another and disguised, in the eye of the recipient, the true identity of the sender. He went so far as to send one such email to my associate late on Sunday night, 23 March 2014, immediately before the hearing began, which he attached to the affidavit. It purported to come from the solicitors for Ariix, but clearly stated in its text that he had sent it for the purposes of demonstrating that it was possible to mask the true identity of the sender of an email. I did not accept that the use of a program such as this is a plausible explanation. Moreover, I do not accept that the availability of such a program is an explanation that makes the respondent’s contention of an impersonator likely, let alone more probable than Ariix’ case that the respondent was the person responsible for the conduct complained of.

85     The possibility that a third person might impersonate the respondent in all the ways suggested is, in my opinion, too fantastic to accept. First, such a person would have to know, among other things, that, although the identity of the respondent as the owner of the ariixcorporate.com website was not publicly searchable, yet, he was the registrant. Although the respondent said that one could switch between having that registration open to search or closed, he produced no evidence that he had ever made his name as registrant publicly available. Indeed, he registered both the usanaaustralia.com and ariixcorporate.com domain names at the same time, but for different periods and with different registrant details. That conduct suggests that he understood that, as he said at one point, he would sell, or try to sell, the ariixcorporate.com one while maintaining his own already existing association with Usana. Secondly, a malicious person would have had to be able to access the ariixcorporate.com website as the registrant so that they could redirect it to the RedTube and the IslamiCity websites and create the various email addresses with their suffixes at that address. Thirdly, the impersonator would have to know how to access the email addresses that the respondent, in fact, used which I have described earlier in these reasons, including any requisite passwords. The impersonator would also have to know about the mahilalld@gmail.com email address and somehow redirect all the relevant emails in December 2012 and July 2013 so they were not received or seen by the respondent. There is no evidence about any activity on the respondent’s email accounts other than what appears in the evidence, far less that he never received them.

86    Fourthly, the malicious person would also have had to be able to know the number of the post office box used by the respondent as registrant of the usanaasutralia.com domain name to send the email to Mr Jones of 16 July 2013, albeit that the registrant of the ariixcorporate.com website was undisclosed at that time. Fifthly, the idea that some malicious person, who had taken steps to conceal, throughout the first half of July 2013, those activities from the respondent, would then invite Dr Cooper to call the respondent on his mobile phone number, is a step too far for me to accept to be possible. That would have undone all the alleged secrecy, yet meant that the person seeking to extort money would not be able to receive the benefit of his or her conduct.

87    Although Mr Yates’ evidence of a conversation with Dr Cooper was given after Ariix’ evidence had closed, and he had apparently not made his presence in the telephone call known, I consider that it is likely that a conversation did occur along the lines described by Mr Yates. It must be acknowledged that it was unsatisfactory that neither Dr Cooper nor Mr Jones gave evidence of such a conversation and that the respondent, I think genuinely mistakenly, failed to cross-examine about it. Nonetheless, I do not accept the respondent’s denials that the conversation took place in the terms deposed to by Mr Yates.

88    Moreover, it is just too fantastic to accept that whoever was conducting the activities in the first half of July 2013 would suddenly cease all activity as soon as the injunction was served on the respondent if he were not the person who had done so. In my opinion, if a third person were acting maliciously, his or her activity would have been the more likely to have continued and escalated. The rogue would have been able to demonstrate, by the fact that an innocent person had been swept up inadvertently in the net created around the respondent, that Ariix would not be able to find that rogue, or at least not easily.

89    Given the resourcefulness and intelligence of the respondent, I do not accept that he was not able to find email accounts or his Gmail account passwords, on his own computers, if he ever had forgotten them. Indeed, he said that the old computer, USB stick and hard drive all had copies of his passwords as an explanation of how the supposed impersonator could have accessed his accounts. He never suggested that he lost those passwords from, or did not retain them on, his computer. He was at great pains to deny that he even would have had a Gmail account with the address mahilalld@gmail.com. While it is possible that he did not, it seems to me to be too much to accept that this was not his email account in the context of the whole of the evidence.

90    Ariix argued that a number of other features in the wording of his emails might link the respondent to the activities complained of, such as specific turns of phrase that appeared in his emails. I did not find that argument persuasive as a means of establishing that he was the author of the material.

Misleading and deceptive conduct

91    In essence, the activity conducted by the respondent in bombarding Ariix and those associated with it with the threats, demands and highly damaging publications containing or being the YouTube videos, emails and Facebook postings, together with his linking the ariixcorporate.com domain to, first, the RedTube and later the IslamicCity websites suggested a great deal of resource on the respondent’s part.

92    I am satisfied that it was misleading and deceptive for the respondent to have suggested, by the redirection of the www.ariixcorporate.com website to the RedTube site, an affiliation or association between Ariix and the pornography site. It was also misleading and deceptive for him to suggest in the conduct complained of that he knew a lot of people associated with Ariix’ business who had had negative experiences or had negative things to say about Ariix, its products and its founders. This is because of the respondent’s own admission that, prior to the commencement of the proceedings, he had had a good opinion of Ariix’ Dr Cooper and the others associated with founding Ariix. In my opinion, based on his own evidence, the YouTube videos that the respondent caused to be created falsely disparaged Ariix and its products by asserting false experiences that were concocted for the purposes of attempting to extort money from it for the sale of the ariixcorporate.com domain name. There was no evidence to support the suggestion that Ariix was nearly bankrupt. I infer, from Ariix continuing to operate and prosecute these proceedings in the nine months since the publication of the assertion in July 2013 that it then was nearly bankrupt, that those assertions were incorrect and misleading.

93    Apart from the irritation to Ariix and the disruption of its business to deal with the conduct complained of in the first half of July 2013, and subsequently dealing with its litigation, the material in evidence to suggest any damage to Ariix is very exiguous. It has not established any actual financial loss other than, perhaps, the USD4,500 paid to its associate, Mr Osorio, to manage the internet SEO response. It is difficult to work out what, if any, sum of money should be awarded to Arrix in damages under s 236(1) of the Australian Consumer Law for the respondent’s contraventions of s 18.

94    I am satisfied that the respondent engaged in the conduct that I have described as being misleading and deceptive in trade and commerce. That is because he engaged in that conduct in order to sell the URL or domain name, ariixcorporate.com: Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 at 604 per Mason CJ, Deane, Dawson and Gaudron JJ; see too CSR Ltd v Resource Capital Australia Ltd (2003) 128 FCR 408 at 415-416 [36]-[41] per Hill J. He had engaged in that activity, first, in late 2012 and did so later in a rather different way in July 2013. Part of what he did was to engage in what might be called the converse of promotional activity for Ariix. Rather, he was using his activities on the internet in various ways through Facebook, emails and YouTube to create an atmosphere in which Ariix, so he hoped, would capitulate to his demands to pay him money to cause his activity to stop, and used the opportunity to sell the domain name as a means of achieving that end.

95    The conduct complained of amounted a serious attack on the business integrity and activities of the operating business conducted by Ariix and it attracted not insubstantial publicity. The nature and scope of that publicity and its effect are somewhat indistinct because of the exiguous nature of the material in evidence. That factor makes the calculation of any damages suffered by Ariix somewhat problematic. It is impossible to come to a figure with any real precision. The Court, in such cases, can only estimate a sum necessary to compensate for the damage caused by the contravention of s 18: Madden v Seafolly Pty Ltd [2014] FCAFC 30 at [116] per Rares and Robertson JJ.

96    In my opinion, in all of the circumstances it would be appropriate to award the sum of $20,000 in damages to Ariix inclusive of the amount paid to Mr Osorio.

Injurious falsehood and intimidation

97    Ariix also relied on two other bases for its claims to relief, namely the torts of injurious falsehood and intimidation. The tort of injurious falsehood is an action on the case of which actual damage is an essential ingredient. The action lies, relevantly, for written falsehoods that are not actionable per se, nor even defamatory, where they are maliciously published, calculated, in the ordinary course of things, to produce, and do produce, actual damage. It is an action for damage wilfully, even intentionally, done without just occasion or excuse, analogous to an action for slander of title: see Palmer Bruyn and Parker Pty Limited v Parsons (2001) 208 CLR 388 at 405-406 [57] per Gummow J approving the exposition in the foundational case of Ratcliffe v Evans [1892] 2 QB 524 at 527-528 in the judgment of Lord Esher MR, Bowen and Fry LJJ. There, Bowen LJ, who gave the judgement of the Court of Appeal, said at 532-533:

“As much certainty and particularity must be insisted on, both in pleading and proof of damage, as is reasonable, having regard to the circumstances and to the nature of the acts themselves by which the damage is done. To insist upon less would be relax old and intelligible principles. To insist upon more would be the vainest pedantry.”

98    As I have said, here the evidence of damage to Ariix is exiguous. There can be little doubt that people were caused to wonder about Ariix, but for the purposes of this tort, I think that it is somewhat problematic that substantial damage has not been proved beyond the USD4,500 paid to Mr Orisio, which I have included in the $20,000 awarded under s 236(1). No further damages should be given in respect of this.

99    In any event, there is a real threat that the respondent will repeat this conduct unless injunctions restrain him. The domain name ariixcorporate.com should be transferred to Ariix to prevent its further misuse, subject to the payment of any necessary transfer fees by Ariix for that purpose.

100    The third cause of action on which Ariix relied is the tort of intimidation. In Morgan v Fry [1968] 2 QB 710 at 724C-D, Lord Denning MR identified the elements of that tort saying:

“The essential ingredients are these: there must be a threat by one person to use unlawful means (such as violence or a tort or a breach of contract) so as to compel another to obey his wishes: and the person so threatened must comply with the demand rather than risk the threat being carried into execution. In such circumstance the person damnified by the compliance can sue for intimidation.”

101    Ariix conceded that it never capitulated by complying with any of the respondent’s demands to pay him money. Nonetheless, I am of opinion that it is also entitled to succeed in these proceedings for the grant of injunctive relief on a quia timet basis: i.e. there is substantial reason to fear that unless appropriate injunctions are granted, the respondent’s threats will continue until Ariix complies with the extortionate demands.

102    For these reasons, I am satisfied that Ariix is entitled to injunctive relief of the nature sought in the amended originating application on a final basis.

Associate:

Dated:    1 May 2014