FEDERAL COURT OF AUSTRALIA

Rafiei Commercial Pty Ltd v Dokt (Interlocutory injunction) [2025] FCA 764

ORDERS

PENAL NOTICE

TO: MR JOSHUA DOKT

IF YOU (BEING THE PERSON BOUND BY THIS ORDER):

(A) REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN THIS ORDER FOR THE DOING OF THE ACT; OR

(B) DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRES YOU NOT TO DO,

YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT.

ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THIS ORDER MAY BE SIMILARLY PUNISHED.

UPON THE APPLICANTS UNDERTAKING:

(a)    to submit to such order (if any) as the Court may consider to be just for the payment of compensation, (to be assessed by the Court or as it may direct), to any person, (whether or not that person is a party), affected by the operation of the order or undertaking or any continuation (with or without variation) of the order or undertaking; and

(b)    to pay the compensation referred to in (a) to the person affected by the operation of the order or undertaking.

THE COURT ORDERS THAT:

1.    Within 14 days of the date of this order, the respondent take down the following material which he has published, whether by himself, his servants or agents:

(a)    photographs of damaged vehicles which have been posted on the Google Business Profile of either of the applicants (including posting material in relation to Google reviews of the applicants or Google maps of the business location of either of the applicants) (which internet sites are referred to in these orders as the “Applicant’s Google Pages”). This includes photographs of the damaged vehicles annexed at GR-6 and GR-28 of the affidavit of Mr Gholamreza Rafiei dated 6 May 2025 and photographs of a similar type.

(b)    words published on the Applicant’s Google Pages to the effect that the applicants, or either of them, buy and sell damaged vehicles. This includes the statement that “Used Cars Centre buys Salvage vehicles and repairs them. sells lemons [sic]” annexed at GR-30 of the affidavit of Mr Gholamreza Rafiei dated 6 May 2025 and words of a similar type.

(c)    words published on the Applicant’s Google Pages or photographs on the internet which state that the applicants, or either of them, have sold defective vehicles. This includes posts or photographs of the banner annexed at GR-26 of the affidavit of Mr Gholamreza Rafiei dated 6 May 2025 and words or photographs of a similar type.

(d)    words or photographs published on x.com (formerly known as Twitter.com) to the effect that the applicants, or either of them, buys damaged vehicles and sells them to the public. This includes the words or photographs annexed at GR-20 of the affidavit of Mr Gholamreza Rafiei dated 6 May 2025 and words or photographs of a similar type.

2.    Until the hearing and determination of this proceeding the respondent, whether by himself, his servants or agents, be restrained from publishing the following:

(a)    photographs of damaged vehicles on the Applicant’s Google Pages;

(b)    words on the Applicant’s Google Pages to the effect that the applicants, or either of them, buy and sell damaged vehicles;

(c)    words on the Applicant’s Google Pages or photographs on the internet which state, or have the effect of stating, that the applicants, or either of them, have sold defective vehicles;

(d)    words or photographs on x.com (formerly known as Twitter.com) to the effect that the applicants, or either of them, buys damaged vehicles and sells them to the public.

3.    The matter be listed for a case management hearing at 9:30am on a date to be fixed.

4.    Costs reserved.

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

REASONS FOR JUDGMENT

DOWLING J

1    This is an application for interlocutory orders. The applicants, Rafiei Commercial Pty Ltd and Mr Gholamreza Rafiei, operate a car dealership. They allege that Mr Joshua Dokt, the respondent, has posted false statements on the internet representing that he purchased a vehicle from the applicants, that the applicants sell defective vehicles, and that the applicants sell or offer to sell motor vehicles which are or have been seriously damaged. The applicants seek orders compelling Mr Dokt to remove those posts from the internet and to prohibit him making similar posts.

2    Mr Dokt opposes the making of the interlocutory orders. He does not deny making the posts but submits that he is entitled to do so. At the hearing of this application, Mr Dokt identified himself as “Joshua from Dokt family”, having come to the Court for the interlocutory hearing on “a special appearance as a principal of that trust”. When I queried whether Mr Dokt was the respondent, he responded “No… I am not that fictional legal entity”. He also said he was not content for me to refer to him as “Mr Dokt” and would respond only to “Joshua”. I am satisfied that “Joshua” who appeared before me is the respondent to this proceeding. First, at the first case management hearing on 23 May 2025 I asked Mr Dokt whether he appeared on his own behalf as the respondent to the proceeding. Mr Dokt responded: “that is correct”. Second, Mr Dokt swore and relied upon an affidavit dated 26 June 2025. That affidavit stated: “I Joshua Dokt say on oath”. Third, Mr Dokt referred in that affidavit to intervention orders made and sought against him by Mr Rafiei. Those orders were directed to Mr Joshua Dokt (or in the case of one order, Joshua Dokht).

3    In the substantive proceedings, the applicants allege that the false statements made by Mr Dokt constitute misleading or deceptive conduct in breach of s 18 of the Australian Consumer Law (ACL), and fraudulent misrepresentation. In those proceedings, the applicants seek permanent injunctions prohibiting Mr Dokt from posting any material on the internet which repeats the alleged false statements.

4    For the reasons set out below I make interlocutory orders in favour of the applicants.

INTERLOCUTORY PRINCIPLES

5    There are two inquiries that the Court must make on applications for the grant of an interlocutory injunction. The first is whether the plaintiff has made out a prima facie case, and the second is whether the balance of convenience favours the grant of an injunction: Australian Broadcasting Corporation v O’Neill [2006] HCA 46; 227 CLR 57 at [65] (Gummow and Hayne JJ, with whom Gleeson CJ and Crennan J agreed at [19]).

6    The phrase “prima facie case” does not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed. Rather, it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial: O’Neill at [65].

7    The prima facie case and balance of convenience inquiries are related. It will often be necessary to give close attention to the strength of a party’s case when assessing the risk of doing an injustice to either party by granting or withholding interlocutory relief: Warner-Lambert Co LLC v Apotex Pty Ltd [2014] FCAFC 59; 311 ALR 632 at [70] (Allsop CJ, Jagot and Nicholas JJ).

8    Relevant to the present application, an application for interlocutory relief must, in showing the balance of convenience favours that outcome, point to inconvenience for which an award of damages at trial would not be a sufficient remedy: Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 at 153 (Mason ACJ); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Blue Star Pacific [2009] FCA 726; 184 IR 333 at [21] (Greenwood J). The question of whether damages will be an adequate remedy will always need to be considered when the Court has an application for interlocutory injunctive relief before it. It is an important factor in the Court’s determination of where the balance of convenience and justice lies: Samsung Electronics Co Ltd v Apple Inc [2011] FCAFC 156; 217 FCR 238 at [62]-[63] (Dowsett, Foster and Yates JJ).

THE EVIDENCE

9    The applicants rely on two affidavits in support of the interlocutory orders sought. The relevant parts of those affidavits are summarised below.

First affidavit of Mr Rafiei

10    The first affidavit of Mr Rafiei was sworn on 6 May 2025. In that affidavit Mr Rafiei relevantly deposes:

(1)    In July 2018, Mr Rafiei incorporated Rafiei Commercial. In December 2018, Rafiei Commercial purchased a carwash business in Moorabbin. In close proximity to the carwash was Prestige Repair, a panel beating business owned by Mr Dokt.

(2)    Mr Dokt and Mr Rafiei had “some dealings” in 2019. The nature of those dealings is not specified.

(3)    In late 2019, Mr Rafiei began operating a car dealership at the same premises as the car wash. The car dealership operated under the names “Used Car Centre” and “UCC Motors”. In September 2021, Mr Rafiei moved the car dealership business to a new location and sold the carwash business.

(4)    The car dealership operates out of an indoor premises without visible cars from the street. Without passing trade, it relies on internet advertising, including through carsales.com.au and Facebook Marketplace. Potential clients will also “frequently look at the online reviews”, with the most common platform being Google reviews.

(5)    In early 2022, Mr Dokt parked outside the car dealership and Mr Dokt yelled: “I’ve found you. I will get back to you soon”. This was Mr Rafiei’s first direct contact with Mr Dokt since 2019. Mr Rafiei came to learn that Mr Dokt believed that Mr Rafiei was responsible for allegations that Mr Dokt was involved in insurance fraud. Mr Rafiei “categorically state[s]” that he is not involved in these allegations.

(6)    In July 2022, Mr Rafiei noticed dozens of photographs of damaged or salvaged vehicles uploaded to the Google reviews page for the car dealership. These photos were posted under the account name “FRAUDSTERR REZA RAFIEI”. None of the photos posted were of vehicles sold through the car dealership.

(7)    In August 2022, two men came to the car dealership and said: “Stop fucking around with Joshua or we will come back to kill you”.

(8)    From August 2022 to October 2023, over 1000 photos were posted to the Google reviews page of the car dealership under the name “FRAUDSTERR REZA RAFIEI”, “Reza Rafiei fraudster”, “Reza Rafiei Fraudster in Australia” or “shifty Reze Rafiei”. Mr Rafiei contacted Google to have these posts removed, but as quickly as the posts came down, new posts would emerge.

(9)    In October 2023, Mr Dokt sent Mr Rafiei threatening text messages. Following this, 24 photos of damaged or salvaged vehicles were posted to the car dealership’s Google reviews page under the name “J D”. One of those posts stated: “Used cars centre repairs Salvage cars and sell them to public. Cars are lemons. DO NOT BUY ANY CAR FROM THIS FAMILY OF FOUR”. Accompanying this post were two pictures of badly damaged vehicles. None of the photos posted comprised cars which were offered for sale by the car dealership.

(10)    In late October 2023, Mr Dokt sent Mr Rafiei a number of text messages that implied that Mr Dokt was responsible for the Google reviews posts. A text message also stated that Mr Dokt will take Mr Rafiei to the “county court for the money which you owe me for repairs that I have done on your cars”.

(11)    In March 2024, additional posts were made by “Reza Rafiei fraudster” to the Google reviews page comprising photos of damaged or salvaged cars accompanied by text reading “expert in selling s.a.l.v.a.g.e cars to the public. best in Australia”.

(12)    In November 2024 to May 2025, more posts comprising damaged or salvaged vehicles were made under the account name “J D” on the car dealership’s Google reviews page. Mr Rafiei says that it is apparent that these posts came from Mr Dokt because there are photographs of Mr Dokt on that account. During this time, Mr Dokt also posted to x.com (X) messages that relevantly stated that Mr Rafiei should “run for [his] life”, and that Mr Dokt will “make sure [Mr Rafiei] pay[s] the price for [his] lies”.

(13)    In March 2025, security cameras at the car dealership showed Mr Dokt placing a banner against the front entrance which stated: “USED CARS CENTRE sold us LEMON. Do NOT BUY FROM Them”. Following this, 15 photos of the banner were posted under the name “J D” to the car dealership’s Google reviews page. Later in March, Mr Dokt published additional posts to X which contained statements to the same effect as the banner. Mr Rafiei denies that Mr Dokt ever purchased a car from the applicants. Further posts of damaged vehicles were posted to the Google reviews page in April 2025. Some of these posts were accompanied by text that warned potential customers to “be careful” of purchasing from the applicants.

(14)    On 23 April 2023, Mr Rafiei’s solicitors wrote to Mr Dokt demanding Mr Dokt remove his posts. Mr Dokt responded on the same day and stated that Prestige Repairs has evidence that when Mr Rafiei first started running the car dealership, Mr Rafiei was buying salvaged cars, having Mr Dokt repair those cars, and selling those repaired cars without paying income tax. Mr Rafiei admits that Mr Dokt did “minor repair work” on a “small number of vehicles”, and those vehicles were subsequently sold by the applicants. However, Mr Rafiei denies the other allegations made by Mr Dokt in the correspondence.

(15)    The posts from late 2024 to 2025 have had a significant impact on the applicants’ revenue: in the period November 2023 to April 2024, the car dealership had sales of $3,481,220.28 whereas the sales for the period November 2024 to April 2025 were $1,625,534.65. Mr Rafiei cannot explain the reduction in sales by any means other than Mr Dokt’s campaign. Additionally, prior to November 2024, 30-40% of people who rang to inquire about the car dealership’s address would not show up, but in April 2025, the number of people who would not show up is 80-90%. Some potential customers have also enquired about the damaged cars on the Google reviews page.

(16)    Damages would not adequately compensate the applicants if their case against Mr Dokt succeeds. This campaign could destroy the car dealership and the applicants cannot maintain the business with the level of sales achieved in April 2025. If Mr Dokt is able to continue to post allegations pertaining to the car dealership, it is likely the applicants’ business will never recover.

Second affidavit of Mr Rafiei

11    The second affidavit of Mr Rafiei was sworn on 27 May 2025. Mr Rafiei deposes that since swearing his first affidavit, three things have occurred:

(1)    In May 2025, Mr Dokt continued to post salvaged or damaged cars to the car dealership’s Google reviews page under the name “J D” and “Reza Fraudster Rafiei in Cheltenham”.

(2)    Also in May 2025, Mr Rafiei received an email from Google stating that Mr Rafiei’s request to have the unwanted photos removed was resolved. Despite this, many of the photos remain online.

(3)    Mr Rafiei was informed by his solicitors that a creditor’s petition was issued against Mr Dokt in the Federal Circuit and Family Court. Additionally, Mr Rafiei is aware that Mr Dokt has issued at least three proceedings since 2020 seeking to set aside bankruptcy notices, each of which has been dismissed with no orders as to costs. These matters give Mr Rafiei additional concern that, even if he succeeds in this proceeding, he will not be able to recover damages from Mr Dokt.

The affidavit of Mr Dokt

12    Mr Dokt filed one affidavit prior to the hearing. The affidavit was sworn on 26 June 2025. Much of the material in it did not appear to be directly relevant to the proceedings before me and contained serious and irrelevant allegations that were not supported by documentary evidence.

13    The following matters deposed to by Mr Dokt in his affidavit bear some relevance to the present proceedings:

(1)    When Mr Rafiei opened the car dealership, Mr Dokt assisted him in repairing “damaged” cars. As a result of this work, Mr Rafiei owes Mr Dokt $116,618.96. In 2020, Mr Dokt sought payment of this money, to which Mr Rafiei repeatedly stated that he would pay him later. Mr Rafiei has taken out intervention orders to avoid paying Mr Dokt the money owed.

(2)    On or around February 2022, Mr Rafiei created a fake Google profile of Mr Dokt in order to imitate Mr Dokt online. This profile was used to post on the Google business page of Prestige Repairs, and called Mr Dokt a “fraudster” and “paedophi[le]”. Mr Rafiei has also involved “counter partners (Hackers) in Iran to hack into [Mr Dokt’s] work computer”. In doing so, Mr Rafiei changed Prestige Repair’s Google profile name to “Prestige Repair insurance fraud in Moorabbin”, removed all of Mr Dokt’s posts and posted “very nasty items online to defame and impersonate [Mr Dokt] and [Prestige Repairs]”.

(3)    The loss of revenue pleaded by Mr Rafiei could be a result of “down times in earning”. Additionally, if Mr Rafiei is correct that the reviews allegedly left by Mr Dokt have led to a decrease in revenue, how is it that “his income was not affected for the past 2-3 years?”.

(4)    The majority of the reviews on the applicants’ car dealership’s Google profile are fake.

14    Mr Dokt emailed a further affidavit to my chambers three days after the hearing. It is not appropriate that I take that affidavit into account. It was not filed in accordance with orders I made for the hearing of the interlocutory application and cannot be responded to or tested by the applicants. In any event, its contents do not alter the conclusions that I reach below.

CONSIDERATION

Prima facie case

15    The applicants submit that there is an “overwhelming” prima facie case for the relief that is sought. The applicants press two causes of action, misleading or deceptive conduct in breach of s 18 of the ACL, and fraudulent misrepresentation under the common law.

Is there a prima facie case that Mr Dokt contravened s 18 of the ACL?

16    Section 18(1) of the ACL provides that a person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

17    The principles which govern the application of s 18 of the ACL are clear. They were recently summarised by the High Court (Kiefel CJ, Gageler, Gordon, Edelman and Gleeson JJ) in Self Care IP Holdings Pty Ltd v Allergan Australia Pty Ltd [2023] HCA 8; 277 CLR 186 at [80]-[82], as follows:

(1)    First, the Court must identify with precision the “conduct” said to contravene s 18. This involves asking what the conduct is, and whether the evidence establishes that the person engaged in that conduct;

(2)    Second, the Court must consider whether the identified conduct was conduct “in trade or commerce”;

(3)    Third, the Court must consider what meaning that conduct conveyed to its intended audience. This involves determining whether the alleged representations are established by the evidence; and

(4)    Fourth, the Court must determine whether that conduct, in light of its meaning, was misleading or deceptive or likely to mislead or deceive.

18    At [83], the High Court went on to say that the third and fourth steps must be undertaken by reference to the effect or likely effect of the conduct on the ordinary and reasonable members of the relevant class of persons. The relevant class of persons may be defined according to the nature of the conduct, by geographical distribution, age or some other common attribute, habit or interest. It is necessary to isolate an ordinary and reasonable “representative member” (or members) of that class to objectively attribute characteristics and knowledge to that hypothetical person (or persons), and to consider the effect or likely effect of the conduct on their state of mind.

19    I first deal with the first, third and fourth steps identified in Self Care, then return to the second step, which proved to be the most contentious issue in this proceeding.

What is the conduct in question?

20    From the evidence and submissions of the applicants, I understand the conduct in question to be as follows:

(1)    Category 1: Mr Dokt’s posts of images of salvaged, seriously damaged or defective vehicles to the car dealership’s Google reviews page, with the posts unaccompanied by any supporting text.

(2)    Category 2: Mr Dokt’s posts of images of salvaged, seriously damaged or defective vehicles to the car dealership’s Google reviews page with the posts accompanied by text that, in effect, advises the public not to purchase cars from the car dealership.

(3)    Category 3: Mr Dokt’s posts to the car dealership’s Google reviews page which show an image of a banner that reads: “USED CARS CENTRE sold us LEMON. DO NOT BUY FROM Them”.

(4)    Category 4: Mr Dokt’s posts of images to X showing salvaged, seriously damaged or defective vehicles, or the banner referred to in Category 3, together with text that effectively states that the applicants sell salvaged, seriously damaged or defective vehicles or “Lemons”.

21    I am also satisfied on the evidence before me that there is a prima facie case that Mr Dokt was the individual that carried out the conduct described above. In coming to this finding, I rely on the fact that Mr Dokt does not deny that he carried out the conduct. Rather, Mr Dokt’s submissions focused on why he believes he is justified in carrying out the conduct. Mr Dokt also admitted at the hearing to placing the banner described in Category 3, although he said he did so at the request of another person. I am also persuaded by the fact that the evidence before me shows that the Google profile for “J D” contains images of Mr Dokt, and that there is evidence before me that Mr Dokt sent threatening messages to Mr Rafiei that conveyed that he had carried out the conduct.

What is conveyed by the conduct? Is the conduct misleading or deceptive?

22    I find that the intended audience of the conduct is people who are interested in purchasing a second-hand car from the car dealership (intended audience). This class would likely rely on Google to identify information about the applicants, including reviews relating to the quality of the cars sold by the applicants and the applicants’ car dealership address.

23    In considering what meaning the conduct conveys to its intended audience, I am satisfied that there is a prima facie case that:

(1)    The conduct constituting Categories 1, 2 and 3 represents to the intended audience that the applicants sell or offer to sell seriously damaged or defective vehicles.

(2)    The conduct constituting Category 4 represents to the intended audience that Mr Dokt has purchased a vehicle from the applicants which was defective, and that the applicants sell defective vehicles.

24    I am satisfied that the conduct conveys those representations in part because of the prevalence of the posts by Mr Dokt on the Google reviews page. When considering the context of the conduct, being posts on Google reviews and X, I am cognisant that an ordinary or reasonable member of the intended audience is less likely to take an isolated post by a seemingly aggrieved consumer as a representation that the applicants sell or offer to sell seriously damaged or defective vehicles. However, the present circumstances are not those of an isolated post by an aggrieved consumer.

25    I consider that an ordinary and reasonable member of the intended audience would look up the car dealership on Google in order to check the reviews and find the address. In doing so, given the large number of posts that Mr Dokt has made concerning the car dealership on Google reviews and X, an ordinary and reasonable member of the intended audience is likely to see the posts made by Mr Dokt and form the view that the applicants sell or offer to sell seriously damaged vehicles. Additionally, given the number of times that Mr Dokt posted statements to X or Google reviews alleging that the applicants sold him a “Lemon”, I am satisfied that an ordinary and reasonable member of the intended audience is likely to see those posts and form the view that an individual purchased a defective vehicle from the applicants and the applicants sell defective vehicles.

26    I am satisfied that there is a prima facie case that the conduct meets the statutory description of misleading or deceptive. The conduct has a tendency to lead an ordinary and reasonable member of the intended audience to error in believing that the representations conveyed by the conduct are accurate. I say also that I am satisfied on the evidence before me that the applicants have a prima facie case that the conduct is false. That is, that Mr Dokt did not purchase a vehicle from the applicants, and that the applicants do not sell seriously damaged or defective vehicles.

Is the conduct in trade or commerce?

27    The second step identified in Self Care, being whether the conduct is in trade or commerce, is the most significant issue to the applicants’ prima facie case. Can posts made by an individual to a Google reviews page constitute conduct that is in trade or commerce?

28    The applicants submitted that statements by a person who are themselves not engaged in trade or commerce that are “designed to discourage consumers from purchasing items from a particular trading entity” constitute conduct that is in trade or commerce. The applicants stated further that this is “particularly so (but not limited to) where the dispute between the parties originates out [of] a commercial or trading dispute”. In support of this, the applicants cited Houghton v Arms [2006] HCA 59; 225 CLR 553 at [32] (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ) and Kazal v Thunder Studios Inc (California) [2023] FCAFC 174; 416 ALR 24 at [354] (Wheelahan J with Wigney and Abraham JJ agreeing), which cited Goldberg J in Firewatch Australia Pty Ltd v Country Fire Authority [1999] FCA 761; 93 FCR 520 at [64].

29    At the hearing, the applicants further submitted that, on the basis of Wheelahan J’s findings in Kazal, the “test” relevant to establishing whether conduct is in trade or commerce in cases where an individual posts misleading statements online is where:

(a)    The genesis of the conduct is a commercial disputation between the parties; or

(b)    The conduct was intended to have the commercial effects of discouraging people from engaging with the applicants, and that conduct is done without a political, social or industrial motivation.

30    In other words, the applicants contend that it was only necessary to establish one of those matters. For the reasons that follow, I seriously doubt that the approach to establishing whether conduct of the kind in this case is in trade and commerce is that broad. I do not consider that Kazal and the authorities considered by Kazal support the proposition that conduct intended to have commercial effects of discouraging people from engaging with the applicants that was conducted without political, social or industrial motivation, and without any genesis in commercial disputation, demonstrates that conduct as being in trade or commerce.

31    However, I consider that, on the basis of the Full Court’s findings Kazal and the cases considered in Kazal at [339]-[354], the applicants before me have a prima facie case that the conduct in question is in trade or commerce because the conduct has its genesis, at least in part, in commercial disputation between the parties. Mr Dokt deposed to this commercial disputation in his affidavit sworn on 26 June 2025. The disputation relates to the repayment of a debt of $116,618.96 for work allegedly performed by Mr Dokt for the benefit of the applicants.

32    In Kazal, Wheelahan J (Wigney and Abraham JJ agreeing) considered whether posts by two individuals to a website, and tweets containing hyperlinks to the website disguised under links to headlines and news stories, constituted conduct that was in trade or commerce for the purposes of s 18 of the ACL. The appellants in that proceeding were two brothers who had been involved in a commercial relationship with the respondents that had broken down. Following that relationship breakdown, the applicants commenced conduct “that resembled a concerted, continuous campaign that was conducted as a vendetta to vilify and denigrate the respondents”: Kazal at [2].

33    In considering whether the Kazal brothers’ conduct was in trade or commence, Wheelahan J examined a class of authorities that considered whether posts to the internet and social media constitute conduct that is in trade or commerce.

34    Relevantly, at [348]-[350], Wheelahan J considered ALDI Foods Pty Ltd as General Partner of ALDI Stores (A Ltd Partnership) v Transport Workers' Union of Australia [2020] FCAFC 231; 282 FCR 174 (Besanko, Bromberg and O’Bryan JJ), where the Full Court held that the publication of misleading posts on social media by the respondent union that were posted for the substantial purpose and with the intention of placing pressure on ALDI Foods to negotiate with or to discuss issues with the union was not conduct in trade or commerce for the purposes of s 18 of the ACL. In reaching that finding, the Full Court held that conduct, such as social media posts, that affects, or is intended to affect, the choices of consumers as to the products they purchase and the places they purchase from is not, on its own, conduct that is in trade or commerce. Conduct will not be in trade or commerce unless in some relevant way it can be said to be an activity that bears a trading or commercial character. Mere advocacy of a social, industrial or political cause is not such an activity: ALDI Foods at [51]-[53].

35    At [351]-[353], Wheelahan J went on to consider Madden v Seafolly Pty Ltd [2014] FCAFC 30; 313 ALR 1 and Fletcher v Nextra Australia Pty Ltd [2015] FCAFC 52. Both cases relevantly concerned individual appellants making misleading statements on the internet pertaining to the respective respondents. In Madden, the Court had regard to the fact that the statements were made by a principle of a trade competitor of the respondent, and that those statements related to the way the respondent conducted its business, to colour the conduct as being in trade or commerce. Similarly, in Fletcher, in determining that the publication of a personal blog post was in trade or commerce, the Court considered that the appellant was not an independent commentator but an active participant in the relevant industry of the respondent who intended his conduct to have an impact on trading or commercial activities.

36    Wheelahan J concluded at [354] that the primary judge was correct to find that the appellants’ conduct had the character of an aspect or element of trading or commercial activities or transactions. His Honour then said:

[354] The genesis of the publications was the commercial disputation between the Kazal brothers and Mr David and their associated companies … The publications were correctly characterised by the primary judge … as a concerted, continuous campaign to vilify and denigrate Mr David and Thunder Studios that was conducted as a vendetta. The publications were calculated by their express terms to influence persons not to have commercial dealings with the appellants: see, Firewatch Australia Pty Ltd v Country Fire Authority … Although the conduct of the appellants was quite extraordinary and was well outside normal experience of commercial behaviour, it arose out of commercial disputation, and was intended to have commercial effects in the way the judge found. The conduct was therefore “in trade or commerce”.

(Citations omitted and emphasis added.)

37    Necessary to Wheelahan J’s finding that the social media posts made were in trade or commerce was that the appellants were engaged in a commercial disputation, and that the conduct engaged by the applicants was intended to have commercial effects. On this basis, and given the presence of what appears to be a commercial disputation between the parties before me concerning the repayment of a debt of $116,618.96 for the alleged performance of work, I am satisfied that the applicants have a prima facie case that the conduct in question is in trade or commerce.

Conclusion about s 18

38    While I have expressed my serious doubt as to how broadly the applicants put the relevant approach for considering whether the conduct of the kind in this case is in trade or commerce, I find that the applicants have a prima facie case in s 18 of the ACL.

Is there a prima facie case that Mr Dokt has made a “fraudulent misrepresentation”?

39    The applicants submit that Mr Dokt has made statements that he knows to be untrue or does not care whether the statements are true or not. The applicants submit that these are the elements of a cause of action in fraudulent misrepresentation.

40    The applicants cite the case of Magill v Magill [2006] HCA 51; 226 CLR 551 in their written submissions. This case refers to the relevant cause of action as the “tort of deceit”. This case provides that the elements of the tort of deceit are (at [114], per Gummow, Kirby and Crennan JJ):

(a)    that the defendant made a false representation;

(b)    that the defendant made the representation with the knowledge that it was false, or that the defendant was reckless or careless as to whether the representation was false or not;

(c)    that the defendant made the representation with the intention that it be relied upon by the plaintiff;

(d)    that the plaintiff acted in reliance on the false representation; and

(e)    that the plaintiff suffered damage which was caused by reliance on the false representation.

41    This statement of principle is frequently cited or relied upon in judgments of this Court, including recently in ACN 117 641 004 Pty Ltd (In Liq) v S&P Global, Inc (No 4) [2025] FCA 72 at [24] (Shariff J) and Chopsonion Pty Ltd (Controllers Apptd) v Watts Meat Machinery Pty Ltd (No 2) [2025] FCA 4; 172 ACSR 228 at [573] (O’Sullivan J); and the Full Court in Martin v Norton Rose Fulbright Australia [2021] FCAFC 216; 289 FCR 369 at [132] (Jagot, Katzmann and Banks-Smith JJ).

42    Applying those elements to the case at hand, I have serious doubts about whether it can be said that the applicants acted in reliance on the materials Mr Dokt uploaded to the internet, or whether Mr Dokt posted the materials to the internet with the intention that the applicants would rely on them. There is no evidence before me that this is the case. The applicants have submitted that reliance need not necessarily be proven for the purposes of granting injunctive relief, but I do not have any authority before me suggesting that the clear statement of the elements in Magill (as relied on by the applicants) may be departed from. On the present evidence and submissions, I do not consider that the applicants have a prima facie case in fraudulent misrepresentation or the tort of deceit. However, as explained above I have found the applicants have a prima facie case regarding a contravention of s 18 of the ACL.

Does the balance of convenience favour the grant of the injunction?

43    The applicants submit that the balance of convenience is “all one way”. They submit substantial damage has been done to their business due to Mr Dokt’s posts. In his affidavit dated 6 May 2025, Mr Rafiei claims there has been a reduction in sales of 53.3% in November 2024 to April 2025 compared to November 2023 to April 2024. Mr Rafiei states that if Mr Dokt is permitted to continue to publish these posts, it is likely that the damage to Mr Rafiei’s business will never recover.

44    The applicants conceded in oral submissions that Mr Dokt’s conduct in making the posts has been going on for some time, but they say the conduct has only become “particularly problematic” since early 2025. They say that is so for two reasons. First, previously the posts were largely uploaded under the name “Rafiei Reza Fraudster”. They say that name suggests a disgruntled person publishing the posts, and hence is more easily able to be discounted. They say there are now a significant number of posts uploaded under the name “J D”. Second, Mr Dokt uploaded the post of the banner reading “USED CARS CENTRE sold us LEMON. Do NOT BUY FROM Them” in March 2025. The applicants submitted that the Court should draw an inference that these posts have led to this more significant and recent damage to the business given that there is no other reason that can be identified for the downturn in sales. I do not need to reach a concluded view on the quantum and causation of loss at this stage. I accept that it is reasonable that some prospective customers who search for the applicants’ car dealership on the internet and see the material that Mr Dokt has uploaded may be discouraged from buying a car from them.

45    In his affidavit dated 27 May 2025, Mr Rafiei states that a creditor’s petition has been issued against Mr Dokt, and that Mr Dokt has been unsuccessful in at least three proceedings since 2020 seeking to set aside bankruptcy notices. Mr Rafiei expresses concern that even if he succeeds in this proceeding, he will not be able to recover damages from Mr Dokt. I have taken these matters into account in considering whether damages are inadequate as a remedy.

46    As for the balance in favour of Mr Dokt, I take into account that freedom of speech can be a factor that weighs in favour of the party against whom the injunction is sought: see e.g. Russell v S3@Raw Pty Ltd [2023] FCA 305 (Meagher J) and the authorities cited at [28]-[32]. I have considered Mr Dokt’s oral submissions that he is exercising freedom of speech. I also understand from his oral submissions that he considers he is telling the public the truth that the applicants purchase damaged cars, fix them and sell them. However, I afford this relatively little weight in circumstances where much of the materials uploaded are demonstrably untrue (such as the photographs of damaged vehicles taken from other websites), or where no evidence has been presented that the materials are true (such as the claim that the applicants sold a vehicle to Mr Dokt). I consider there is only a very limited balance in favour of Mr Dokt.

47    In these circumstances I consider there is a strong balance of convenience in favour of granting the injunction.

CONCLUSION AND DISPOSITION

48    I weigh together that there is a moderately strong prima facie case for contravention of s 18 of the ACL, and a strong balance of convenience, in favour of granting the injunction. I therefore consider it appropriate to grant interlocutory relief.

49    It is necessary for me to comment on the nature and format of the orders I will make. The applicants originally sought orders which required that Mr Dokt remove and be restrained from posting any material on the internet which represented that he had purchased a vehicle from the applicants, that the applicants sell defective vehicles, or that the applicants sell or offer to sell vehicles which are or have been seriously damaged. During the hearing the applicants provided amended orders directed at a description of the conduct (by reference to the four categories described above) rather than the effect of the conduct. I consider those orders are clearer and more understandable for the respondent. The orders will also reference the material exhibited to Mr Rafiei’s affidavit dated 6 May 2025. Again, I consider that reference assists in enabling the respondent to fully understand them and be clear about what is being asked.

50    I will otherwise list the substantive matter for case management hearing. The date for that hearing will be allocated after consultation with the parties.

51    For all of the above reasons I make the following orders:

1.    Within 14 days of the date of this order, the respondent take down the following material which he has published, whether by himself, his servants or agents:

(a)    photographs of damaged vehicles which have been posted on the Google Business Profile of either of the applicants (including posting material in relation to Google reviews of the applicants or Google maps of the business location of either of the applicants) (which internet sites are referred to in these orders as the “Applicant’s Google Pages”). This includes photographs of the damaged vehicles annexed at GR-6 and GR-28 of the affidavit of Mr Gholamreza Rafiei dated 6 May 2025 and photographs of a similar type.

(b)    words published on the Applicant’s Google Pages to the effect that the applicants, or either of them, buy and sell damaged vehicles. This includes the statement that “Used Cars Centre buys Salvage vehicles and repairs them. sells lemons [sic]” annexed at GR-30 of the affidavit of Mr Gholamreza Rafiei dated 6 May 2025 and words of a similar type.

(c)    words published on the Applicant’s Google Pages or photographs on the internet which state that the applicants, or either of them, have sold defective vehicles. This includes posts or photographs of the banner annexed at GR-26 of the affidavit of Mr Gholamreza Rafiei dated 6 May 2025 and words or photographs of a similar type.

(d)    words or photographs published on x.com (formerly known as Twitter.com) to the effect that the applicants, or either of them, buys damaged vehicles and sells them to the public. This includes the words or photographs annexed at GR-20 of the affidavit of Mr Gholamreza Rafiei’s dated 6 May 2025 and words or photographs of a similar type.

2.    Until the hearing and determination of this proceeding the respondent, whether by himself, his servants or agents, be restrained from publishing the following:

(a)    photographs of damaged vehicles on the Applicant’s Google Pages;

(b)    words on the Applicant’s Google Pages to the effect that the applicants, or either of them, buy and sell damaged vehicles;

(c)    words on the Applicant’s Google Pages or photographs on the internet which state, or have the effect of stating, that the applicants, or either of them, have sold defective vehicles;

(d)    words or photographs on x.com (formerly known as Twitter.com) to the effect that the applicants, or either of them, buys damaged vehicles and sells them to the public.

3.    The matter be listed for a case management hearing at 9:30am on a date to be fixed.

4.    Costs reserved.

Associate:

Dated:    11 July 2025