3 Notices of objection under SCR Pt 67 r 12A were delivered by each defendant. The principal arguments were advanced by Mr Blackburn of counsel for the third defendant and were adopted by the representatives of the other defendants. One of the points taken by Mr Blackburn was the insufficiency of the particulars in relation to the asserted republication. The point was taken, and in my view validly so, that the particulars were deficient in failing to clarify to the respective defendants the assertion of "authorised" or "intended". Similarly, no particulars were provided of the case to be made by the plaintiffs that publication "was the natural and probable result" of the particular defendant's conduct.
4 In response, the plaintiffs candidly stated that the particulars in the pleading are the best that can be given at this stage. The publications contain information, it is said, which in can be inferred comes from within the first defendant's camp. The publications were analysed and, on the basis of inference, parts can specifically be attributed to an employee of the first defendant. Another part attributed to the third defendant who, it is said, may be inferred to have been acting on behalf of the first defendant. It is thus argued that the publications reveal that both the first and third defendants were the direct source for part of the publications. It strongly can be inferred, therefore, that they were also sources for other information in the publications which appears to have come from within the first defendant's camp. The plaintiffs have no means of determining between them. It is also possible, the plaintiffs contend, that the first defendant, being willing to assist in the publications, as demonstrated by the contributions of its employee and of the third defendant, provided information through other sources, though at present the plaintiffs do not know.
5 Whilst the plaintiffs intend, before the s7A trial, to seek orders for discovery and interrogatories limited to the issue of publication, at present the best that can be said, and this is incorporated in the particulars appended to the pleading, is that the case for republication or the role of the other defendants is founded upon inference rationally capable of being drawn from such facts as are available from the matters complained of themselves.
6 It will, nonetheless, be necessary for the relevant defendants to know with clarity the facts, matters and circumstances upon which the plaintiffs rely as founding a rational inference that can be drawn to establish that such defendants were publishers or were liable for republication. Any distinction, for the purposes of the s7A trial, between the role of the defendants as liable for the original publications or as liable for the original publications by reason of "republication", will have to be considered in the light of my judgment in Griffith v Australian Broadcasting Corporation [2003] NSWSC 298, 9 April 2003, at para [23].
7 A second matter that was sought to be raised by the third defendant related to the particulars of aggravated damages. No notice was given and that matter has been placed in abeyance.
8 Further, a matter was raised by the first defendant in relation to the particulars provided in support of the allegation in paragraph 15 of the statement of claim being particulars of "special damage". Further particulars of that have been provided by the plaintiff in paragraph 12 of their response to the objections.
9 In relation to each of the matters complained of the following imputations are pleaded of the first and second plaintiffs respectively:
9(a) that for the company of which he was Managing Director, APD International Pty Ltd, he had obtained by deception a benefit of more than $3 million;
(b) that he had created false invoices in order to defraud American Micro Devices Inc;
(c) that he had created false purchase orders in order to defraud American Micro Devices Inc;
(d) that he had been involved in deceptive conduct involving microprocessor remarking.
10(a) that it had obtained by deception a benefit of more than $3 million;
(b) that it had created false invoices in order to defraud American Micro Devices Inc;
(c) that it had created false purchase orders in order to defraud American Micro Devices Inc;
(d) that it had that it had been involved in deceptive conduct involving microprocessor remarking.
10 Before turning to the substantive submissions made by Mr Blackburn for the third defendant which were adopted by the first and second defendants, it is appropriate to deal with two matters that were raised by Mr Hryce for the second defendant.
11 The major objection taken on behalf of the second defendant relates to the imputations of the first plaintiff (Mr Doan). It was argued for the second defendant that none of those imputations is capable of arising. Whilst acknowledging that published material may make allegations against a company, and could be understood also to be defaming officers of that company and people associated with it, whether that can apply is of course dependent upon the nature of the publication and its contents and the nature of the imputations pleaded and the status of the relevant person.
12 It was argued that imputations 9(a), (b), and (c) allege that Mr Doan himself committed the acts encapsulated in the imputations, but those acts, on a fair reading of the matter complained of, were attributed to the company. Imputation 9(d) of the first plaintiff is pitched very high. All are imputations of guilt; none is an imputation of suspicion. It is contended that nowhere in either article is the commission of the respective acts attributed to Mr Doan himself. It would be understood that the allegations are made against the company and only against the company. The more so is this the case, it is contended, not only by reason of the assertion of guilt in terms of commission of the acts but by reason of the articles containing statements of ignorance, if not denials, by Mr Doan himself.
13 On a capacity basis I am not persuaded by these submissions. A plaintiff always is in peril of the consequences of having pleaded imputations which can be characterised as "too high", that is, imputations of guilt as opposed to imputations of suspicion. Once the capacity barrier has been passed, that price is to be determined by a jury and I think that should be the case here. Further, the mere inclusion of denials or statements of ignorance on the part of the person or plaintiff would be insufficient, on reading these complex articles, to hold as a matter of law that the imputations are incapable of being carried. Another matter that stands in the way of the success of the discrete submission made for the second defendant is the statement set out at lines 54 and 55 of Appendix A and lines 55 and 56 of Appendix B where express reference is made to allegations being put to the plaintiff that "he and his company had been involved in …".
14 The second point made by Mr Hryce, on a strictly technical basis, could warrant a finding that the matter complained of is incapable of carrying the pleaded imputations in their natural and ordinary meaning. Imputations 9(b) and (c) contain the words "American Micro Devices Inc". Nowhere in either matter complained of do these words appear. No doubt that is the full name for the entity which is described as "AMD". I am not prepared to find in favour of the second defendant on this basis. It is clearly a matter, as Mr Hryce acknowledged, for amendment. The plaintiffs will have to amend the imputations to include the abbreviation or take the step of pleading a true innuendo if such is to be required. The former course I would have thought would be the more attractive.
15 I turn now to the principal submissions made by the third defendant and adopted by the other defendants. All questions of law relating to capacity were, by consent, to be determined pursuant to SCR Pt 31 r 2.
16 The point first made in relation to capacity was that the matters complained of are incapable of conveying any of the imputations of the first plaintiff. These I have dealt with above. I decline to find that the matters complained of are incapable of carrying the pleaded imputations of the first plaintiff.
17 It was next contended that imputations 9(a), (b) and (c) contravene SCR Pt 67 r 11(3) in that they do not differ in substance. Fundamental to this submission is what the ordinary reasonable reader of each article would understand to be the thrust and principal theme of each publication as the "$3 million marketing scam…" That is, the emphasis is on one scam. The "scam" might have had several components but imputations (b) and (c) do no more than specify the manner in which the "scam" was carried out. It is submitted that such imputations add nothing to the sting encapsulated in imputation 9(a).
18 Further, imputations 9(b) and (c) as a matter of substance do not differ each from the other. Whilst 9(b) refers to "false invoices" and 9(c) refers to "false purchase orders", it is contended that the substantive allegation is precisely the same in each case, namely that the first plaintiff created false documentation in order to defraud the first defendant.
19 If it be the case that imputations 9(b) and (c) do not between themselves differ in substance then each should be struck out leaving imputation 9(a). To put it another way, if imputation 9(a), as the defendants submit, encapsulates everything that is sought to be separately pleaded in 9(b) and (c), then the rule has been contravened.
20 When one considers the terminology of each of the imputations it is, in my view, unarguably clear that as a matter of language each is different in substance. Imputation 9(a), the more general, refers to the obtaining by deception of a benefit of more than $3 million; 9(b), the creation of false invoices to defraud; 9(c), the creation of false purchase orders to defraud. However the defendants argue that by reference to context (and in my view this is not an illegitimate approach on a difference in substance point) as outlined above, namely that the overriding "scam" is that which had netted $3 million. Nothing further is added by 9(b) and (c).
21 A concession was made by Mr Molomby SC for the plaintiffs that the imputations have a similar "defamatory impact". That of course is not the same as failing to differ in substance. As I have remarked, each imputation alleges a different "discreditable" act as Mr Molomby described it. Indeed each arises from a different section of the matter complained of. They are independent; a justification could succeed in relation to one but not another.
22 Imputation 9(b) relates to false invoices for media advertising to obtain marketing rebates. It must be acknowledged, on the other hand, that the imputation does not say that. I understand this proposition to be advanced in the context of, at least, what the defendants have to justify. Be that as it may, there is an abundance of material in schedules A and B that can be allocated to the proposition contained in imputation 9(b).
23 Similarly, imputation 9(c) relates to what is said to be a separate part of the publication which introduces the notion of "false purchase orders" and this is in respect of an entity known as "Express Data" (see lines 51-52 in schedule A, for example).
24 Mr Molomby argues that the defendants are in effect creating a paradox of which they might be the victims. If the plaintiffs, for reasons that cannot objectively be known to anyone reading a statement of claim, pleads only imputation 9(b) by reason of the plaintiffs' belief in the truth of 9(a) and (c), the defendants, on their submissions, cannot rely on the truth of (a) and (c) as contextual to (b) because of it being the same in substance. They would be relying on the truth of (c) about false purchase orders to prove the truth about an imputation about a marketing scam based on different false documentation, so the plaintiffs' argument runs. If the defendants' submissions are correct, they would not have available to them the defence of contextual truth in relation to (a) and (c). This might be an endless paradox. Insofar as the defendants could respond "well, that is the point", that is the very point that they are making - that they would be embarrassed by having to confront, in terms of truth, three identical substantial propositions, each of which might be proved by the same material.
25 Whilst I appreciate the submission made, as it is usually made, by referring to what would have to be proved by reference to the 22-year-old decision of Hunt J in Jackson v John Fairfax and Sons Ltd [1981] 1 NSWLR 36 at 41, in this instance by reference both to the language of the imputations which in my view bespeaks of difference in substance and by reference to context, namely that which was published, the plaintiffs must succeed on this aspect.
26 The final point taken by the defendants relates to imputation 9(d) (by way of example) and the use of the word "involved" and by reference to the 13-year-old decision of Hunt J in Armitage v Double Bay Newspapers Pty Ltd (NSWSC, unreported, 26 September 1991) and the embarrassment its vagueness, in strict terms, can cause. This point has been conceded by the plaintiffs. The plaintiffs accept that the imputation should be more specific as to the element of "involved in" and propose to amend the imputation to include the words "that he knowingly engaged in deceptive conduct through microprocessor remarking".
27 The plaintiffs have succeeded overall.
28 The formal orders are: