See also Barbaro v Amalgamated Television Services Pty Limited (1985) 1 NSWLR 30 at 35G and 54B.
9 Section 7A of the Defamation Act 1974 provides, inter alia, (1) that in proceedings for defamation tried before a jury, the Court and not the jury is to determine whether the matter complained of is reasonably capable of carrying the imputation pleaded by the plaintiff, (2) that if the Court determines that the matter is not reasonably capable of carrying the imputation pleaded by the plaintiff the Court is to enter a verdict for the defendant in relation to the imputation pleaded and (3) that if the Court determines the matter is reasonably capable of carrying the imputation pleaded by the plaintiff the jury is to determine whether the matter complained of carries the imputation. On this application there was no question about whether the imputation was reasonably capable of bearing a defamatory meaning, a question which is also dealt with in those three subsections.
10 In his reasons for judgment Levine J said that he had little difficulty "subject to the nub of the defendants' contention in coming to the conclusion that the matter complained of is capable of conveying imputations in terms of (a), (b), (c), (g), (h) and (i)". His Honour stated that the nub of the defendants' contention was that "the plaintiff in this action is 'AIFME '97 Pty Limited ACN 069 197 360' to which there is no reference at all in the matter complained of". With due respect this is not correct.
11 In the form it took in November 1996, s120 in Pt 2.2 of the Corporations Law required the Australian Securities Commission (now the Australian Securities & Investments Commission), when registering a company, to allot to it a registration number distinct from the registration number of each body corporate already registered under Pt 2.2. If ACN 069 197 360 was the ACN number of the plaintiff as the title to the proceedings suggested, it could refer to no corporate body or person other than the plaintiff; see generally s219 of the Corporations Law. Reference to the number was a way of identifying a corporate entity and a jury might conclude that it would only have been used by the publisher of the article to make that identification certain. Levine J observed correctly that the ACN number was virtually a "branding" of a corporate entity upon its incorporation under the Corporations Law. This being so, it seems to me, with the greatest respect, wrong to say that para 5 disclosed no reasonable cause of action. The matter complained of was reasonably capable of carrying the imputation pleaded by the plaintiff.
12 As part of its case the plaintiff may have to prove that the material complained of was published to a person or persons who would be able to identify the plaintiff by its ACN.
13 Levine J said that Mr Neil QC, who appeared for the plaintiff, took an approach which on its face was clearly available. That was, that as a matter of "commonsense" the ordinary reasonable reader would not be concerned with technical refinements of ACN numbers or even a "year label" but rather with the repetition of the letters "AIFME". The ordinary reasonable reader would not be concerned to discriminate but rather would focus upon the letters "AIFME" and in some way identify that as the relevant entity. His Honour said:
"This argument of course, has its attractions but I have come to the view that it is simply not available in the formal context of the structure of the Second Amended Statement of Claim and its pleading of both natural and ordinary meanings and the true innuendos said to arise from Schedule A, the first matter complained of.
The entity that has sued is the corporation AIFME '97 Pty Limited ACN 069 197 360 ; that is the entity which asserts its reputation was damaged by the publication complained of and relies upon the causes of action pleaded in the form of the imputations.
Returning to the imputation set out above and bearing in mind the terms of the matter complained of imputations (a), (b) (f), (g), (h) and (i) cannot be carried by the matter complained of, of and concerning this plaintiff. The article points to another entity against whom judgments have been obtained by the defendants, which judgments have not been paid. In relation to the entity described in the matter complained of as AIFME Brisbane '96 Pty Limited which happens to have the same ACN number as the plaintiff, the pleading, in my view, discloses no cause of action. The matter complained of is incapable on any rational basis of asserting anything about this particular plaintiff's 'solvency' though is capable of asserting quite a lot of things about the company against whom the judgments were obtained. It is however a different entity which, strictly, has its own reputation."
14 I have difficulty in understanding what Levine J meant here. It is quite true that Australian International Farm Machinery Exhibition ACN 001 865 300 (AIFME), against which it is said judgments have been obtained, was on any view a different entity from AIFME Brisbane '96 Pty Ltd (ACN 069 197 360). The bite of the article was the inability of the first entity to pay its debts and the insinuation in the last sentence that there was a connection or association between the two suggested by the acronym, the common principal business office or place of business and the principal activity. The question was whether the second entity referred to was the plaintiff.
15 Further on in his judgment Levine J said:
"It is not known to me whether the reference in the matter complained of to 'AIFME Brisbane '96' (emphasis added) is in some way a misprint either in the Schedule or in the article itself. However, the argument advanced by Mr Wheelhouse as to the significance of the ACN number, it being the only thing common to the plaintiff and the ' Brisbane '96' corporation referred to in the matter complained of, and nothing to do with the judgment debtor company, is persuasive both on the capacity question and the 'of and concerning' question.
The plaintiff is not sufficiently referred to, ie identified, in the matter complained of; identification has not been particularised; it is not pleaded in appropriate form as an alter ego case, the mere coincidence of the ACN is insufficient and must be struck out."
16 Of these two quoted paragraphs I again have difficulty with the first. The reference to the significance of the ACN number as being the only thing common to the plaintiff and the "Brisbane '96" corporation overlooks the critical point of identification which a jury might think was inserted by the publisher to point to the plaintiff. Why else put it there?
17 Furthermore, I think the appellant's other argument has force. The respondents submit that the use, after reference to Australian International Farm Machinery Exhibition, of the acronym AIFME could be quite innocent. But a jury might think otherwise. No acronym is used for the respondent, Norley Pty Limited. To avoid confusion and the use of the long name "the debtor company" might have been used. The appellant submitted that the ordinary reasonable reader would, on the face of the material provided in the manner complained of, identify the appellant and any other company bearing the acronym AIFME.
18 In Love v Mirror Newspapers Limited (1980) 2 NSWLR 112 at 122 Hunt J remarked that the summary jurisdiction of the Court to strike out a plaintiff's statement of claim in defamation, upon the ground that the matter complained of is incapable of conveying the imputations pleaded by the plaintiff, cannot be exercised in a defendant's favour unless the plaintiff's claim is shown to be either so obviously untenable that it cannot possibly succeed or manifestly groundless. Hunt J referred, in this regard, to Bik v Mirror Newspapers (1979) 2 NSWLR 679. This led to a use of the procedure under Pt 31 r 2 (a) of the Supreme Court Rules. It is not clear whether Levine J was proceeding under this rule or not. But Hunt J in Love v Mirror Newspapers Limited said:
"An order would probably not be made where evidence other than the matter complained of itself was relevant to that decision, for example, where proof of extrinsic facts was required either to identify the plaintiff Consolidated Trust Co Limited v Browne (1948) 49 SR (NSW) 86 …….. or where, for any reason, facts had to be assumed for the purpose of deciding the question of law….. This is because there may be, and sometimes is, a world of difference between the extrinsic facts of which particulars have been supplied and the extrinsic facts themselves as revealed by the evidence which is given at the hearing Vlasic v Federal Press of Australia Pty Limited (1976) 9 ACTR 1 and 5,6."
19 For present purposes I am content to say that I am entirely persuaded that the matter complained of was reasonably capable of carrying the imputation pleaded by the plaintiff and that accordingly the appeal should be allowed and the order striking out paragraph 5 of the statement of claim set aside. So, too, should the order requiring the plaintiff to pay the defendants' costs of the action pleaded in paragraph 5 and of the motion. The defendants should pay the plaintiff's costs of that motion and of this appeal.
20 The ratio for Levine J's decision of 20 February 1998 was his Honour's conclusion that the amendments proposed in the third further amended statement of claim constituted an attempt to re-litigate or have the Court decide again the very issue on which it pronounced on 8 August 1997. Furthermore, his Honour had doubts about whether the amended particulars were proper particulars and said that were he to decide the discrete issue he would be inclined to refuse leave to amend on the basis of futility.
21 Since I am of opinion that the appeal from the judgment of 8 August 1997 should be allowed and the order striking out para 5 of the statement of claim set aside, it follows that the ratio upon which the orders of 20 February 1998 proceeded has gone and that the appeal from that decision should also be allowed, the orders set aside and the application remitted to the Common Law Division to be reconsidered. When reconsidering the application, the question of the costs of it can also be reconsidered. The appellant is entitled to the costs of this appeal.