Has your business received a bad Google Review? You might be entitled to an injunction!

Litigation: 20 July 2025

Author: Caroline Skeoch - Our People

In Rafieri Commercial Pty Ltd v Dokt (Interlocutory Injunction) [2025] FCA 764, Justice Dowling considered whether words published on website of Rafiei Commercial Pty Ltd that it sold defective vehicles, or sell vehicles which have been seriously damaged were misleading and deceptive or likely to mislead or deceive for the purposes of s 18 of the ACL.

The applicants, Rafiei Commercial Pty Ltd and Mr Gholamreza Rafiei, operate a car dealership. They alleged Mr Joshua Dokt, the respondent, posted false statements on the internet 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 allege those statements constitute misleading or deceptive conduct in breach of s 18 of the ACL and seek permanent injunctions prohibiting Mr Dokt from posting any material on the internet which repeats the alleged false statements.

S 18 of the ACL is found at Schedule 2 of the Competition and Consumer Act 2010 (Cth) and provides a person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

The Federal Court applied the common law principles which govern s18 as stated summarised by the High Court of Australia  (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.

Dowling J found there was a prima facie case, that is, a sufficient likelihood of success, of a breach of section 18 of the ACL because:

(1)        First, the “conduct” of Mr Dokt said to contravene s 18 was words posted on the Applicant’s car dealership website “USED CAR CENTRE sold us LEMON. DO NOT BUY FROM Them” as well as photographs of seriously damages, salvaged or defective vehicles;

(2)        Second, Mr Dokt’s conduct of posting the words and photographs on the car dealership website was conduct “in trade or commerce” because the genesis of Mr Dockt’s posts was a commercial disputation over the repayment of a debt of $116,618.96 for alleged performance of work by Mr Dokt for the benefit of the Applicants.  However, Downing J queried whether, for the purposes of proving a breach of section 18 of the ACL, the Applicant’s claim that the content of the posts themselves were ‘in trade and commerce based on a prior commercial disputation alone, is enough;

(3)        Third, the intended audience of the posts is people who are interested in purchasing as second-hand car from the Applicant.  The meaning the posts intend to convey is that the Applicant sells or offers to sell seriously damaged or defective vehicles and that Mr Dokt had purchased such a vehicle from the Applicants and that Mr Dokt intended his audience to believe those posts based on the number of posts; and  

(4)        Fourth, the meaning conveyed by the posts met the statutory description of misleading or deceptive because the multiple posts by Mr Dokt had the tendency to lead an ordinary and reasonable member of the intended audience into error, by believing that the publications were accurate and the Applicants have a prima facie case that the publications are false and they do not in fact sell seriously damaged or defective vehicles.

In determining the Applicant’s had a moderately strong prima facie case against Mr Dokt for misleading and deceptive conduct, Downing J then considered whether the balance of convenience favoured the grant of injunctive relief sought by the Applicants.  The balance of convenience will be so satisfied where there is evidence that monetary damages at trial would not be a sufficient remedy.

In considering the evidence before the court, Downing J relied on affidavit evidence of the Applicant’s of the significance of the substantial damage 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. Furthermore, there was affidavit evidence that Mr Dokt was likely to be made bankrupt in the future which would mean the Applicant would be unable to recover monetary damages