New South Wales Supreme Court CITATION : ING (AUSTRALIA) LTD v MUSCAT [2003] NSWSC 1133 revised - 3/12/2003 HEARING DATE(S) : 27 November 2003 JUDGMENT DATE : 27 November 2003 JUDGMENT OF : Levine J DECISION : 1. Notice of motion dismissed.; 2.Defendant/applicant to pay the plaintiff/respondent's costs of the motion. CATCHWORDS : Application to dismiss proceedings - to dissolve injunction - injurious falsehood - s42 Fair Trading Act - s8A Defamation Act LEGISLATION CITED : Defamation Act 1974 s8A Fair Trading Act 1987 s42 CASES CITED : Advanced Hair Studio Pty Limited v T V W Enterprises Limited (1987) 18 FCR 14 Concrete Constructions (New South Wales) Pty Ltd v Nelson (1990) 169 CLR 594 ING (AUSTRALIA) LTD (Plaintiff/Respondent) PARTIES : v ALEXANDER MUSCAT (Defendant/ Applicant) FILE NUMBER(S) : SC 20585 OF 2002 G Reynolds SC / A Dawson (Plaintiff/ Respondent) COUNSEL : M B Williams SC / T Bland (Defendant/ Applicant) Abbott Tout (Plaintiff/ Respondent) SOLICITORS : Marina Voncina (Defendant/ Applicant) - 1 - Ex tempore: revised [2003] NSWSC 1133 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST JUSICE DAVID LEVINE THURSDAY 27 NOVEMBER 2003 20585 OF 2002 ING (AUSTRALIA) LTD (Plaintiff) v ALEXANDER MUSCAT (Defendant) JUDGMENT (Application to dismiss proceedings – to dissolve injunction – injurious falsehood – s42 Fair Trading Act – s8A Defamation Act ) 1 These proceedings before me today were in a technical sense initiated on 15 October this year by the filing of a notice of motion for the defendant, which notice of motion was accompanied by an affidavit of Marina Voncina sworn 3 October 2003 and who is the defendant's solicitor. That motion seeks orders that the proceedings be dismissed, that an interlocutory injunction granted on 20 December 2002 be dissolved, and consequential orders as to costs. 2 On 20 December last year, for the reasons stated in my judgment, I made orders in accordance with the summons filed thereby restraining publication by the defendant of the defamatory material with which I was concerned. Since that time on reading especially the affidavit of the defendant's solicitor, it is apparent that there has been a lot of correspondence between the parties that has achieved little, if anything. It is apparent also from the court record that an active step by the plaintiff was dealt with by Simpson J on 20 May in relation to progress of the matter on pleadings, with the outcome that the matter was not to progress on pleadings. 3 Three issues have been confronted by the respondent to today's motion. First, the availability to the plaintiff corporation of a cause of action in defamation. That arises in the context of the amendment to the Defamation Act in December of last year by the insertion of s8A which prohibits corporations, subject to the curious test in that section, from instituting proceedings for defamation. That prohibition did not come into effect until 17 February this year. 4 The affidavit of Simon Stanton sworn in support of the initial application before me for injunctive relief, and the exhibits thereto and what became Exhibit 1, certainly provides material to found these two inferences: first, that the publication was in existence, and by the word "publication" I mean the sign on the truck had been created well before the amending legislation was enacted, let alone before it came into effect and secondly, a rational inference can be drawn from the very nature of the constructed material that it could well have been, on the probabilities, seen by anyone by virtue of its dimensions. What is abundantly clear is that at the time of the grant of injunctive relief there was evidence of the intention on the part of the part of the plaintiff to publish, not least in Kent Street in the City of Sydney. I am satisfied a clear case has been made and that the libel is a serious one. 5 Historically, between December and today there has been one curious matter and that was an indication by the plaintiff to the defendant of its intention not to proceed with seeking relief for the cause of action for defamation, from which position as at last night it had resiled. Historically, it is also clear from March of this year the plaintiff had made known to the defendant its intention to proceed to seek a remedy in the tort of injurious falsehood. The most recent relief the plaintiff has indicated it would seek is under s42 of the Fair Trading Act. 6 Drawing the inferences that I have, I will say no more than the status quo in relation to the relief granted for defamation still exists, in my view, and I am not persuaded to vary what is in place. I will come back to injurious falsehood and the Fair Trading Act shortly. 7 Merely by way of statement by counsel made today, the applicant/defendant would wish to put on some evidence touching upon the issue of publication which, in effect, has been live since 20 December 2002 in relation to any one of the three areas of relief with which I am now concerned. 8 I might interpolate, it has not been expressly raised by one side or the other, to my recollection, that the applicant/defendant could have made some statement on oath or via a solicitor as to his conduct generally consequent upon the granting of the injunction on 20 December. 9 As to the Fair Trading Act component of the respondent's position today, I am satisfied that the context underlying apparently everything is a dispute between the plaintiff and the defendant as to the plaintiff's obligations under a policy of insurance, a policy issued in relation to income protection and business expenses of the defendant. That provides an appropriate factual background to support the assertion of the defendant engaging in trade or commerce for the purposes of s 42 and I have in mind first the statement of French J in Advanced Hair Studio Pty Limited v T V W Enterprises Limited (1987) 18 FCR 14, which statement by his Honour is in no way inconsistent with what was said by Mason CJ and Deane, Dawson and Gaudron JJ in Concrete Constructions (New South Wales) Pty Ltd v Nelson (1990) 169 CLR 594 at 604. The entitlement to injunctive relief in respect to the Fair Trading Act component can be considered to be alive and well. 10 Similar observations can be made in relation to the tort of injurious falsehood. In all of them, for present purposes, I am persuaded that the case made out in December continues and the case pointed out today exists and the balance of convenience clearly is in favour of injunctive relief. 11 However, insofar as the defendant/applicant has made some application for adjournment to confront what he now sees to be the three-pronged attack, the relief being continued is interlocutory and if the defendant feels at any time he has a case to present to the court to dispose of it, he is, of course, free to do so. On the other hand, the plaintiff has given an undertaking diligently to prosecute these proceedings, an undertaking which will be best reflected when the parties come before the Registrar on 12 December either with agreed directions or to obtain directions for the further conduct of this matter. The status quo to which I have referred is best maintained by the continuation of the orders I made on 20 December 2002, and I make orders to that effect. 12 I dismiss the motion filed on 15 October 2003 and order that the defendant/applicant pay the plaintiff/respondent's costs of the motion which I have dismissed. I order the return of the two exhibits in these proceedings. ********** Last Modified: 12/04/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.