Case: Snowy Mountains Organic Dairy Products Pty Ltd v Australian Broadcasting Corporation [2006] VSC 138
Outcome: considered
12 April 2006, Bongiorno J dismissed complaints by the various defendants in the Supreme Court proceedings that they had all been inappropriately joined in the one proceedings notwithstanding that there were two separate and quite distinct publications in respect of which there were distinct issues ( Snowy Mountains Organic Dairy Products Pty Ltd v Australian Broadcasting Corporation [2006] VSC 138). He held that any defendant could apply again at or before the trial for appropriate relief to separate the issues as to the two publications. Bongiorno J said that he was satisfied that taking all the relevant circumstances into account it was convenient not only to the parties, but from the Court's own perspective, to permit the matter to proceed in its present form. He concluded that at that stage of the preparation of the matter there was no undue risk of unfairness to any party by permitting the issues arising from two publications to remain joined and that it could lead to considerable savings of time and cost of doing so. After Bongiorno J gave judgment, the defendants in the Supreme Court filed defences, each of which raised pleas of justification, although the issues that were to be justified were distinct as I shall explain. In the proceedings in this Court the Dairy complained that the letter written by Wholefoods (which was signed by Mr Kinnear on its behalf) made representations in trade or commerce in contravention of s 52 of the Trade Practices Act 1974 (Cth) that: &#8226; the labelling of milk and cream produced and sold by the Dairy was untruthful; &#8226; the truth or falsity of the labelling of the milk and cream produced and sold by the Dairy warranted official investigation by the Victorian Government's Consumer Protection Authority; &#8226; Wholefoods' servant or agent, Mr Kinnear, the signatory to the letter, was acting as a retailer and consumer of the Dairy's products in making his complaint to Consumer Affairs Victoria; &#8226; the account of events alleged in the document attached to the letter was true and correct (par 3). Each of those representations was alleged to be false. I raised during the course of argument that the last representation, as framed, was quite unclear in respect of what it claimed was misleading, deceptive or false and that it would be impossible for a judge trying the issue to know precisely what it was in the 'account of events alleged' which was in issue. Counsel for the Dairy has indicated that consideration will be given to an amendment to clarify the matters sought to be raised by that allegation. Justice Bongiorno ruled that each of those imputations was capable of being conveyed by the matter complained of and he refused to strike them out ( Snowy Mountains Organic Dairy Products Pty Ltd v Australian Broadcasting Corporation [2006] VSC 138 at [29] , [33], [35] and [41]). In doing that he noted that the word 'questionable' in the last of those imputations was not so ambiguous as to render the pleading embarrassing even though it could mean both 'open to question, arguable' or alternatively 'dishonest, dubious, shady' ([2006] VSC 138 at [37]-[38]). No doubt, the precise sense in which that expression will be used when the matter comes to trial will require a degree of clarification: see Singleton v Ffrench (1986) 5 NSWLR 425 at 435E-F per McHugh JA. However, for present purposes, it suffices that on the current state of the pleadings in the Supreme Court, the truth or falsity of the Dairy's claim to have organic milk is squarely in issue. The article in the Weekly Times was said to convey the following meanings or imputations: &#8226; the Dairy, in holding out its product as organic milk, was an imposter; &#8226; the Dairy had misled consumers by posing as a producer of organic dairy products; &#8226; new laws were necessary to prevent the Dairy from falsely describing its product as an organic; &#8226; the Dairy had crossed the line delimiting acceptable conduct in relation to promoting its goods honestly; &#8226; the Dairy had damaged the credibility of the organic food industry; &#8226; it was necessary to pass new laws to protect consumers from the Dairy's conduct; &#8226; the Dairy had so conducted itself as to warrant investigation by Consumer Affairs Victoria (par 15). Mr Kinnear filed a defence in the Supreme Court which pleaded justification of the final three imputations said to have arisen from the broadcast. The particulars of justification set out in his defence asserted much of what is in the letter of 23 November 2004 to Consumer Affairs Victoria and annexures which are the subject matter of these proceedings. The Australian Broadcasting Corporation and its journalists pleaded a defence of justification, but the particulars which they gave were that Mr Kinnear had sent the letter of 23 November 2004 to Consumer Affairs Victoria and it had commenced an investigation as a result. The Weekly Times and its journalists pleaded that the final imputation pleaded against them was true, in that, the Dairy was the subject of investigation following receipt by Consumer Affairs Victoria of the letter 23 November 2004. There were differences of a substantial kind between the two matters complained of in the Supreme Court proceedings and the three defences filed (those of Mr Kinnear, the ABC and its journalists and the Herald &amp; Weekly Times and its journalists). During the course of submissions in the Supreme Court proceedings before Bongiorno J on the joinder of the two matters complained of, the Dairy submitted: 'There seem likely to be at least common issues of fact (as to the Consumer Affairs investigation, at the very least). In this respect it is submitted that the claim almost certainly would or should satisfy [VSC] Rule 9.02(2)(i). There also seem likely to be common witnesses, [Mr] Kinnear at least.' The Dairy also submitted to Bongiorno J that there were likely to be common questions of fact, witnesses and that a separation into separate jury trials would involve incurring further costs or delay, with an unsatisfactory spectre of two actions in which trials could be conducted at different times or worse at the same time. It said that either way, the call upon the resources of the Court would be greater than the present combined action. It also said that the evidence of the Dairy's witnesses '... and witnesses such as [Mr] Kinnear, will inevitably take longer in the second of the two trials as there would be cross-examination about the evidence in the first trial'. Wholefoods submitted on the present motion that there will be common issues of fact with those raised in the Victorian proceedings. In essence, Wholefoods argued that the Dairy's claim in this Court is a contrivance and is a further claim in defamation, dressed up as a trade practices claim. Wholefoods also relied upon the failure of the Dairy to give proper particulars of the way in which it put its loss. At the hearing it was not known what the attitude of the other parties to the Supreme Court proceedings, other than Mr Kinnear, would be to the question as to, if the matter were cross vested to the Supreme Court, whether it could be heard together with or consolidated into the current Supreme Court proceedings. I directed that the parties make enquiries for the purposes of ascertaining that. Having regard to the fact that Bongiorno J appears, at this stage, to have considered that it was appropriate that the two separate claims for defamation proceed concurrently, and remain joined in the one action, it seemed to me that, given the materiality of Mr Kinnear as a witness and the centrality of his complaint to Consumer Affairs Victoria, which was written on Wholefoods' letterhead, it would be in the interests of the parties to these proceedings, and the Dairy and Mr Kinnear as parties to the Supreme Court proceedings, to have the issues raised here also considered together with the issues in the Supreme Court action. Most significantly I raised the risk of inconsistent findings as to the truth of the relevant imputations or representations, all of which arise out of, in substance, the question whether it was appropriate for the Dairy to represent its milk as organic. I raised with the parties that there was a clear risk of inconsistent findings of fact. That risk applied also to issues as to the credibility of Mr Kinnear and the Dairy's witnesses. The Dairy and Wholefoods filed further submissions in early October 2006 and Wholefoods also filed further evidence, to which I now refer. In late August 2006, the media defendants in the Supreme Court proceedings brought an application for third party discovery against the Director of Consumer Affairs Victoria. The Dairy supported this application. Its solicitor, Mr Ball, in an affidavit sworn on 6 September 2006, exhibited notices issued by the Director pursuant to s 106A of the Fair Trading Act 1999 (Vic) which had been served on the directors of the Dairy. These notices required them to substantiate a number of claims made in relation to the Dairy's products. Additionally, on 8 September 2006, the Dairy made submissions in support asserting that it was not an issue that the investigation by Consumer Affairs Victoria was initiated by the complaint made to it by Mr Kinnear. None of this was before me during the course of the hearing on 7 September 2006. On the other hand, if all proceedings brought by the Dairy based on Mr Kinnear's letter of 23 November 2004 were tried in different courts, there could be conflicting findings made on one or more issues common to the two proceedings. That is an indication that there is a single matter or controversy between the parties: Re Wakim; Ex parte McNally [1999] HCA 27 ; (1999) 198 CLR 511 at 586 [141] per Gummow and Hayne JJ. Here, at the present time, Bongiorno J has held that there is, in substance, a single controversy between the parties to the first Supreme Court proceedings notwithstanding that there are two separate matters complained of published by apparently separate individuals with no common connexion other than the fact that the Dairy is the plaintiff against all those defendants. And the Dairy asserts that the second Supreme Court proceedings are also part of that one controversy.