Case: Lee v Wilson and Mackinnon [1934] HCA 60 ; (1934) 51 CLR 276
Outcome: referred to
respondents have admitted that the third respondent published the first page of the Customer Facsimile and that the second respondent published a document resembling the first page of the attachment. The third respondent was the author of the first page of the 13 September facsimile and the second respondent was the author of the attachment, which he wrote at the request of the third respondent. There was no evidence to prove that the attachment had been written for any purpose other than its transmission to the addressee named upon it. Insofar as the applicants seek relief for defamation in respect of the publication of the 13 September facsimile it is appropriate to have regard to what Dixon J, as his Honour then was, said in Lee v Wilson and Mackinnon [1934] HCA 60 ; (1934) 51 CLR 276 at 287-8, namely: 'It is the publication, not the composition of a libel, which is the actionable wrong. Often the person sued for publishing is not the writer. The injury done by a libel arises from the effect produced upon its readers. These considerations naturally led to a rigorous application to libels of the rule that the meaning of a document should be determined independently of the actual intention which the writer entertained. The acceptance of a criterion of liability which adopted, not the intention actuating the writer, but the understanding produced in the reader, was aided by the rule, which can be traced back to an early time, that for the interpretation of a libel evidence could be received of particular circumstances affecting its meaning, and of the actual interpretation which persons conversant with those circumstances affixed to it.' At the time when the 13 September facsimile was transmitted the third respondent was the sole director of the first respondent. As at 13 September 2005 no companies had been registered bearing the names 'Nielsen &amp; Moller Auto glass Australia Pty Ltd' or 'Nielsen &amp; Moller Autoglass International &amp; Australia Pty Ltd'. However, Nielsen &amp; Moller Autoglass Pty Limited ACN 064 101 873, which was registered on 28 March 1994, was in existence on that date. Prior to October 2001, it apparently had a different name. As at 14 August 2006 Nielsen &amp; Moller Autoglass Pty Limited had an issued capital of two shares, both of which were owned by the third respondent, who was also its sole director and secretary. On 6 September 2003 a letter was sent by the third respondent on a letterhead suggesting that the company with the Australian Business Number 79 064 101 873 then had the name 'Nielsen &amp; Moller Autoglass International Pty Ltd'. Its address was shown as the third respondent's then home address. On 18 February 2004 the third respondent signed a facsimile message as 'Managing Director/Proprietor' of 'Nielsen &amp; Moller Autoglass International Pty Ltd' on a facsimile form giving the Australian Business Number 79 064 101 873 as its ABN. On 11 May 2004 the third respondent signed a letter on the letterhead of 'Nielsen &amp; Moller Autoglass International Pty Ltd' showing as its address '8 10 Durkin Place Peakhurst NSW 2210 Sydney Australia' and giving the Australian Business Number of Nielsen &amp; Moller Autoglass Pty Limited as its ABN. Nielsen &amp; Moller Autoglass International Pty Ltd may have been the then name of Nielsen &amp; Moller Autoglass Pty Limited, but there is insufficient evidence to enable such a conclusion to be drawn.