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kmslaw
kmslaw, Solicitor
Category: Australia Law
Satisfied Customers: 209
Experience:  I have 15 years legal experience behind me and I graduated from the University of Sydney with First Class Honours in Arts/Law.
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I am a mango farmer. A mango industry group take sugar

Customer Question

I am a mango farmer. A mango industry group take sugar samples of fruit we supply to wholesale markets and publish the results without our consent. We feel the information is misleading because all published information says using sugar levels as a standard for taste or quality has no basis. Also, they tell retailers that fruit with the highest sugar levels are the best to buy. This causes retailers to avoid our fruit in favor of higher sugar levels. Can we sue for defamation?
Submitted: 1 year ago.
Category: Australia Law
Expert:  kmslaw replied 1 year ago.

Hello my name is***** am a solicitor in NSW and I am going to help with your inquiry today. Are you trading as a sole trader? If so, you might be able to sue for defamation if the articles they write are directly about you. If they are about a company or trust you trade through then no you can't. You need to look at the articles if you are a sole trader and see if the imputations from the article denigrate you and your reputation. If the articles are about the fruit though maybe not. What you are looking for I think is a different cause of action, one relating to misleading and deceptive conduct. But I am thinking: what's to stop you from having organised your own published material about the dangers of a too high sugar diet as a war against these articles? I hope I have helped you today. Let me know if you need further help.

Customer: replied 1 year ago.
Hi Kylie yes we are sole trader. The published sugar levels name my business as the owner of the fruit. They are listed alongside other growers sugar readings. Mine was 12 the other growers were 14. Then the group say that "buyers are looking for the highest numbers" yet their own research says that 14 tastes no better than 12. As you state, higher sugar level is not an indicator of better fruit. Yet it is published in a way to convey this. Whether defamation or false and misleading conduct is the best way, we want to know. Last year, the same group put our name alongside a false reading. They retracted the reading in the newspaper, but now they are trying again. It has caused damage to our reputation in our small community, so that people shun us or speak disparagingly about us
Expert:  kmslaw replied 1 year ago.

Misleading or deceptive conduct is your best bet I think. Do you want a phone call to get the information you need? We can talk about starting the claim.

Customer: replied 1 year ago.
Hi Kylie, thanks for your reply. I am sure we will talk together. However have a few more questions
1) Is Qld law the same?
2) What would I need to prove?
3) Can action be taken in a "small claims" type court?
4) what are the steps to taking an action like this?
Regards
Graham
Expert:  kmslaw replied 1 year ago.

Hello. Yes it's a federal law so Queensland law is the same. It's under the Australian Consumer Law. The losses that you would have suffered would be higher than what a small claims court would cover.

Expert:  kmslaw replied 1 year ago.

But bringing an action under this section is not without its problems as section 18 of the Australian Consumer Law says you must not, in trade or commerce, mislead or deceive but section 19(1) says if you are in the business of being an information provider then you can escape liability on that ground. So you would have to prove that they were not merely providing information but were setting out to persuade consumers to purchase particular produce.

Customer: replied 1 year ago.
Thanks, ***** ***** a heading above the published sugar levels (called Brix levels) it has this proviso " we encourage all growers, wholesalers and retailers to support this system". Recently, the same group, when discussing this system, quoted a large wholesaler in Brisbane Market as saying " Brix (sugar level) testing helped our customers because they were always looking for the brands that recorded the highest score.
Yet, a 2012 Ohio State University research paper says under "Limitations of Brix Measurement"
Sugar level is only one factor that contributes to the overall quality of a crop. Crops with the highest Brix (sugar) reading will not necessarily taste sweeter or best.
Would this type of information be sufficient to prove they are intent on persuading consumers to purchase particular produce?
Why I mentioned using a small claims court is because I am more interested in getting a judgement against them than in high claims for damages. If it is a simpler course of action to get a judgement then that would be preferable
Expert:  kmslaw replied 1 year ago.

The damages that you would be seeking would be for your losses, so how much in losses have you sustained through this misleading practice?

Customer: replied 1 year ago.
It is hard to quantify. I would have to confirm with our clients. However, the main damage is to our reputation as growers and how people are viewing us in the community.
How do we put a price on this. We have evidence of this that can be substantiated.
Expert:  kmslaw replied 1 year ago.

Hi Graham. I have been reading over our conversation again and thinking further about it because of what you are saying about the damage to your reputation. Would it be fair to say that the articles, taken together, impute that "Graham X is a mango farmer who doesn't produce quality fruit" and is that why people are shunning you? Previously I was thinking the articles are about the fruit but now I can see it's more than that. If that's the case you may have also a defamation action. In bringing such a claim, you would need to prove your previous good reputation had been harmed by the articles. Would you like me to call you about getting one or both of these actions started?

Customer: replied 1 year ago.
you have it correctly and we have witnesses who can substantiate this. Before we get started on action, could you outline the process involved
Expert:  kmslaw replied 1 year ago.

First you will need an advice as to the prospects of your success in bringing a claim. This will involve me asking you for copies of the publications and any other details about your reputation that I need to know. Then I will need to do a bit of reading on the law of defamation in Queensland which will certify whether your claim is likely to be a success. I can offer you a written opinion on your chances of success which will outline the strengths and weaknesses of your case. Then you have to make a decision whether, based on that, you wish to go ahead. Then a statement of claim or summons will need to be drafted for the particular Court that will hear defamation claims. A filing fee will have to be paid and depending on which Court it is, they are likely to have 28 days to file a defence and if not, judgment will be given. If they do file a defence then it will be time to put on witness statements and then we shall proceed to trial. Does that cover everything you wish to know? As for my time in preparing you for such a case, my hourly rate is $350 plus GST (Australian dollars) and you can just continue to pay me through this website if that's most comfortable for you but we need to set up a new page from time to time because I think only one additional service can be offered per page.

Expert:  kmslaw replied 1 year ago.

Hello. What have you decided to do about this problem? Please let me know.

Customer: replied 1 year ago.
I feel that I have a good case. However, once I start action there is no turning back. I have to have the strength to pursue it to the end, especially financially. If they have insurance companies backing them for litigation, it may be a financial minefield. Maybe it is better to walk away
Expert:  kmslaw replied 1 year ago.

Yes I agree, it takes courage. And money. But is the result worth it?