Case: Boral Besser Masonry Limited v Australian Competition and Consumer Commission [2003] HCA 5 ; (2003) 215 CLR 374
Outcome: referred to
relation to the letter apparently sent by the third respondent as the Managing Director of the first respondent to: 'The Director ACCC Sydney' on 15 March 2006 [see paragraph 1(g)(v) of the Third Further Amended Application] it may be observed that within its five pages it included the following on pages 4 and 5 thereof: (page 4) '... The home detention sentence did not stop MAGGIE from attending her office and continuing her business activities even though she was a convicted criminal and a disqualified Company Director. She has now resorted to issuing a Summons for Defamation on Fatuous Grounds through her Solicitors Robert Yip&amp;Co on myself and my father. Her oleaginous approach to business and propensity to approach her solicitors in order to extract herself from her illegalities has certainly cost her a large amount of money ...' (page 5) '... The present Predatory Pricing Tactics of NAGS and MAGGIE and CHO has had such a SERIOUS EFFECT ON THE AUSTRALIAN MARKET THAT ITS COMPETITORS ARE NOW FACED WITH CRITICAL FINANCIAL DIFFICULTIES AND UNLESS IMMEDIATE ACTION IS TAKEN THE AUSTRALIAN ARG MARKET WILL BE TAKEN OVER BY A CORRUPT CHINESE CEO AND HIS ACCOMPLICE. ...' I would understand the reference to an 'oleaginous approach to business' to be to a well-oiled approach. The letter dated 15 March 2006 concluded with an observation that it had been prepared at the third respondent's request by the second respondent. Notwithstanding his education at Sydney Grammar School, I very much doubt that the word 'oleaginous' was one which formed part of the third respondent's vocabulary. He did not present as a linguistic scholar of any note. In relation to the applicants' reliance upon the so-called 'contemptuous conduct' of the second respondent by reason of his letter dated 9 January 2006 (referred to in paragraph 1(h) of the Third Further Amended Application see [31] above) to Robert Yip &amp; Co, the solicitors for the applicants, I have difficulty in so categorising the second respondent's conduct in sending it. The applicants submit that in the 13 September facsimile it was represented that the first applicant conducted its business unfairly, in that it sold products at unrealistic prices that were below cost in order to gain market control. True it is that the 13 September facsimile bears the heading 'NAGS/FYG Background in Australia Since 1998'. However, observations about how the first applicant conducted its business are relatively confined. In the text of the cover sheet to the 13 September facsimile, the third respondent wrote: 'The wholesale supply industry has become unsustainable, due to unrealistic low supply prices that are by far the lowest in the world. With Australia now selling below costs for last 6 maths (sic) all suppliers' I would observe that this statement about 'selling below cost' appears to be related to all wholesale suppliers and not simply the first applicant. In the attachment to the facsimile coversheet, addressed to the Australian Tax Office, the following appears: 'I [referring to the second respondent] ... would point out that NAGS at the moment has embarked on predatory pricing policy to control the Australian replacement market by selling product below cost.' I would understand the reference to 'predatory pricing policy' to be a reference to a policy under which uneconomically low prices were set. However, the objective of price-cutting will ordinarily be to take business away from competitors. If the objective is achieved, competitors will necessarily be damaged. If it is achieved to a sufficient extent, one or more of them may be eliminated. That is inherent in the competitive process. Successful competition is bound to cause damage to some competitors. It is dangerous to proceed too quickly from a finding about purpose to a conclusion about taking advantage of market power, which may be wrongful and constitute conducting a business unfairly (see per Gleeson CJ and Callinan J in Boral Besser Masonry Limited v Australian Competition and Consumer Commission [2003] HCA 5 ; (2003) 215 CLR 374 ('Besser') at 420 [122]-[123]). In discerning whether the representation alleged by the applicants was made in the 13 September facsimile it is relevant to have regard to the fact that the statement concerning a predatory pricing policy was made in the context of an assertion that there were four major wholesalers of autoglass in Australia, one only of whom was the first applicant, yet all of whom had been 'selling below costs'. For a finding to be made that the 13 September facsimile contained a representation that the first applicant conducted its business 'unfairly' one would need to find material suggesting that the unfairness lay in the first applicant taking advantage of a substantial degree of power in the relevant market for the purpose of eliminating or substantially damaging its competitors. The three purposes to be served by an award of damages for defamation were identified in the joint reasons of Mason CJ, Deane, Dawson and Gaudron JJ in Carson v John Fairfax &amp; Sons Limited [1993] HCA 31 ; (1993) 178 CLR 44 ('Carson') at 60: (i) consolation for the personal distress and hurt caused to the relevant applicant by the publication; (ii) reparation for harm done to the relevant applicant's personal and, where appropriate, professional, reputation; and (iii) vindication of the relevant applicant's reputation. As pointed out in Carson the first two purposes are frequently considered together and constitute consolation for the wrong done to the relevant applicant. Vindication looks to the relevant attitude of others (per Hayne J in Rogers v Nationwide News Pty Limited [2003] HCA 52 ; (2003) 216 CLR 327 ('Rogers') at [60]; see also at [35]).