Case: National Auto Glass Supplies (Australia) Pty Ltd v Nielsen &amp; Moller Autoglass (NSW) Pty Ltd [2006] FCA 1386 ; (2006) 156 FCR 148
Outcome: referred to
as the applicant's case relies upon the assertion that the publications were defamatory, that, in the circumstances of this case, becomes a question of fact for me as the trial judge to determine. The question as to whether the publications were capable of giving rise to the defamatory imputations pleaded has already been addressed (see National Auto Glass Supplies (Australia) Pty Ltd v Nielsen &amp; Moller Autoglass (NSW) Pty Ltd [2006] FCA 1386 ; (2006) 156 FCR 148). In the Third Further Amended Application filed 27 October 2006 in this case the first applicant identified that its claims have arisen under ss 52 , 53 , 55A and 60 of the Trade Practices Act 1974 (Cth) (the ' Trade Practices Act ') and ss 42 , 44 , 50 and 55 of the Fair Trading Act 1987 (NSW) (the ' Fair Trading Act '). In addition, the applicants have indicated that they all claim relief for defamation under the Defamation Act 1974 (NSW), the Wrongs Act 1958 (Vic), the Criminal Code Act 1899 (Qld), the Defamation Act 1889 (Qld), the Criminal Code Act 1913 (WA), the Wrongs Act 1936 (SA), the Defamation Act 1957 (Tas), the Civil Law (Wrongs) Act 2002 (ACT) and the law of Hong Kong and the People's Republic of China. The substantive claims made by the first applicant in the Third Further Amended Application filed 27 October 2006 included claims for orders as follows: 'On the grounds stated in the accompanying Third Further Amended Statement of Claim, the First applicant claims: 1. An order that the respondents are liable to pay damages to the First applicant: (a) under S.82 of the Trade Practices Act and s.68 of the Fair Trading Act ; (b) under S.87 of the Trade Practices Act and s.72 of the Fair Trading Act . 2. A declaration that the Respondents have engaged in misleading and deceptive conduct pleaded in the Second (sic) Further Amended Statement of Claim; 3. Orders under Section 80(1) of the Trade Practices Act and s.65 of the Fair Trading Act restraining the Respondents from engaging in the misleading and deceptive conduct pleaded in the Second (sic) Further Amended Statement of Claim;' In respect of the claims made by all of the applicants in respect of alleged defamation the Third Further Amended Application filed 27 October 2006 contained a claim for substantive relief as follows: 'On the grounds stated in the accompanying Second (sic) Further Amended Statement of Claim, the Applicants claim: 1. An order that the Respondents are liable to pay damages to the Applicants for defamation, including aggravated and exemplary damages. Particulars of aggravated and exemplary damages (a) the failure of the Respondents to apologise; (b) the falsity of the imputations complained of and the knowledge by the Respondents of that falsity prior to publication; (c) the sensationalist presentation of the matters complained of; (d) the failure of the Respondents to make reasonable enquiries of the Applicants including but not limited to ascertaining falsity of the imputations and the failure to ascertain the likely impact upon the Applicants prior to publishing the matters complained of; (e) the failure of the Respondents to make reasonable enquiries of persons other than the Applicants prior to publishing the matters complained of; (f) the malice of the Respondents as particularised in the Applicants' Reply to Amended Defence and Defence to Cross Claim. (g) the repetition of the defamatory imputations in the matters complained of in the following subsequent publications: (i) letter from the Second respondent to ATO dated 4 October 2005; (ii) letter from the Second respondent to the ATO dated 25 October 2005; (iii) email from the Third respondent to the ATO (Nesa Gnanaratnam) dated 22 February 2006; (iv) email from the Third respondent to ATO (Nesa Gnanaratnam) dated 1 March 2006; (v) letter from the Third respondent to the director of ACCC dated 15 March 2006; (vi) letter from the Second respondent to the Honourable Bruce Baird dated 24 March 2006. (vii) email from the Second respondent to Roger Jiang dated 4 August 2006. (viii) email from the First and Third respondents to Curie Chan (sic) dated 4 August 2006. (h) the contemptuous conduct of the Second Respondent by reason of his letter to Robert Yip and Co dated 9 January 2006. (i) the violent verbal assault made by the Third Respondent on the Applicants' lawyers outside the Federal Court on 22 August 2006 (j) the Applicants rely upon the malice of the Second and/or Third respondents infecting the First respondent by reason of them being the guiding minds of the First respondent. (k) the publication of the second matter complained of, after publication of the first matter complained of; (l) the publication of the third matter complained of after publication of the first and second matters complained of.' Section 82 of the Trade Practices Act relevantly provided: '82(1) A person who suffers loss or damage by conduct of another person that was done in contravention of Part ... V ... may recover the amount of the loss or damage by action against that other person or against any person involved in the contravention.'