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[2009] NSWDC 97
District Court of NSW
2009-03-27
Channel Nine P
Original judgment source is linked above.
These proceedings for defamation were commenced on 13 April 2007. Mr Larach's application for the US patent for his modular rain tank was lodged on 13 July 2007 (PB-122) and Atlantis' trade mark in the United States lapsed later that same month (PB-151). A notice of abandonment of the EcoRain trade mark application in the United States was later lodged by the Atlantis company group.
On 18 September 2008 Atlantis wrote a letter to Hanes Geocomponents ("Hanes") repeating allegations that the plaintiff, Mr Larach had copied the Atlantis tank module and produced the EcoRain tank module as a result. The letter stated that Atlantis "is presently in Court in Australia against Stormwater" and that as part of the evidence an expert opinion had been obtained from a US patent attorney on the infringement of the EcoRain tank modules to the effect that this was an infringement. The letter went on to claim that: "This document has been presented in Court in Australia. We are awaiting the outcome of the Court case, which will be heard in February 2009, before we decide what action we take in the USA and other countries. For your reference we enclose herewith a copy of the expert opinion." (PB-153)
In fact, Atlantis had abandoned the proceedings it brought in the United States against Stormwater. The proceedings in Court in Australia which were to be heard in February 2009 were these defamation proceedings in which Atlantis was the one of the defendants. Although it was open to Atlantis to lead evidence that imputations about infringement were true, it elected not to do so.
This brings me to a consideration of the matters complained of and in particular the imputations pleaded by the plaintiffs which, it must be said, similarly avoid any imputation that Stormwater infringed the second defendant's product or copied Atlantis products with a Chinese imitation branded with a copy of the Atlantis trade mark, or any other imputation in relation to the main dispute between the plaintiffs and the defendants, namely the originality of the products being sold by the plaintiffs.
The defendants have explained that the expense of proving whether or not the plaintiffs' products are copies and thereby infringe the defendant's trade marks and designs is too expensive an issue to litigate, and they do not want a decision which may amount to issue estoppel. Thus the issues about which the parties have joined issue are whether or not Stormwater committed fraud by placing certain pictures of project sites on its website, whether Stormwater knowingly and blatantly overstated the experience of its consultants, contextual imputations about "copying" ((a), (c), (g) and (h)), which fall short of asserting infringement, and a complaint that the website stated the products were patented when the patent was merely pending.
I shall consider each publication and the imputations conveyed separately.
The relevant test is whether an ordinary reasonable reader would derive from the words of which complaint is made any imputation or imputations pleaded. In answering this enquiry any strained or unreasonable interpretation is to be rejected. The Court is entitled, and required, to take into account the mode or manner of publication. Some forms of publication, such as a letter or book (as distinct from a newspaper) require more assiduous attention than others: Holmes v Fraser [2008] NSWSC 570 at [24] per Simpson J.
I shall consider each of the publications in turn.
Imputation 6(a): That Stormwater had committed fraud by placing certain pictures of project sites on their website.
The defendants admit that this imputation is conveyed by the first matter complained of and is defamatory of the second plaintiff. No ruling by me is required.
Imputation 6(b): That Stormwater had knowingly and blatantly overstated the experience of its consultants on its website.
The defendants challenge that this imputation is conveyed. The plaintiffs draw my attention to the portion of the first matter complained of commencing at line 35 under the subheading "Website, misleading and deceptive conduct": "Additionally on the Home Page, it states that "Our consultants have over 25 years of experience in over 30 countries worldwide. You would be led to believe that Stormwater Solutions LLC or their employees have been in the water management business for 25 years, and have sold products in 30 countries. This is false.
That is a blatant misrepresentation. Oscar Larach worked for Atlantis Corporation for 12 years. Prior to that he sold women's stockings and before that used cars.
Manuel Arriagada, a friend of Oscar Larach has only been in the Stormwater industry for five years after becoming an Atlantis distributor in California, before that he was a truck driver. Hence the claim 25 years experience is a gross misrepresentation."
The terms of the publication are quite scathing in their denunciation of the first plaintiff and his fellow director, not only in relation to the length of time they actually spent in the form but also the menial nature of their previous employment. The clear inference is that the company consists of these two persons whose qualifications in terms of length of time and skills fall so far short of their claims that their exaggerations must be deliberate. This imputation is conveyed.
The test for defamatory meaning in relation to damage to business reputation has been substantially revised by the High Court in Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16, in which the Court held that the Court of Appeal's decision in Radio 2UE v Chesterton [2008] NSWCA 66 and Gacic v John Fairfax Publications Pty Ltd (2006) 66 NSWLR 675 were in error in requiring a jury to be directed that the general test as to defamatory meaning should not be applied in business libel cases (at [60]).
In anticipation of the successful High Court challenge to Chesterton, the second plaintiff submits that the imputation would still be defamatory under the orthodox community standards test of whether it is likely to cause ordinary reasonable persons to think less of the plaintiff or to shun or avoid the plaintiff. On the orthodox test, this is clearly an imputation which would cause ordinary right-thinking members of the community to think less of the second plaintiff.
That a company would knowingly and blatantly overstate its experience on its website, (which the ordinary reasonable reader knows is there to advertise its business) must cause damage to the reputation of the second plaintiff in the mind of ordinary right-thinking persons. Accordingly, I find this imputation defamatory.
Imputation 8(a): That Stormwater had committed fraud by placing certain pictures of project sites on their website.
The defendants admit that this imputation is conveyed by the second matter complained of and is defamatory of the second plaintiff.
Imputation 8(b): That Stormwater had knowingly and blatantly overstated the experience of its consultants on its website.
Imputation 10(a) - That Stormwater had behaved in such an underhanded and devious way, that one needed to be extremely cautious in dealing with it.
Imputation 10(b) - That Mr Larach had behaved in such an underhanded and devious way, that one needed to be extremely cautious in dealing with him.
Imputations 6(a) and 8(a) - That Stormwater had committed fraud by placing certain pictures of project sites on its website.
A significant problem in this case was that the only way the content of the plaintiffs' website could be viewed was to read the printouts which were tendered. For reasons which were later explained as being printing difficulties, the dates on which the website pages were copied did not come through on some of the pages of the website that were printed off.
Unfortunately, as a result, everyone was confused. Not only the lawyers made errors, but so apparently did the parties. This only became apparent when Mr McHugh addressed on the basis of the web page details as they were given to him by his clients after the hearing, which were factually different to the evidence in the trial.
Mr Potter commenced his oral submissions at T-464, by addressing that evidence when Mr Potter said: "I thought I'd start, your Honour, with that blistering point that my friend raised about how incorrect my submissions were on the factual point, to deal with that up front. Now, it floored me when he said this, because I prepared my submission on the basis of the transcript, and at all times, Mr Larach was cross-examined both in relation to the unknown site and the BMP matter, in relation to the website material on 24 January. They put to him "Go before they [sic] look at this website in September, and why did you put EcoRain then?" So there's a Brown v Dunn point there, but I thought that I'd looked at these websites in September and I couldn't find it, and over lunch I've had another look at it, and I'd just like to take your Honour to this bundle, because there's something very wrong with it."
At T-465ff, Mr Potter took me through the bundle to demonstrate what was wrong. Mr McHugh told me, at T-467, that while some of the entries had dates at the bottom, others did not.
There then came the question of whether the dates on the document were the dates when the material had been cached, or whether that was the date that they had been created into a PDF file or the date of printing. Mr McHugh said, at T-438.11, that a particular document dated 31 January 2006 was showing the date on which it was printed.
Further complications arose when it transpired that copies of the document given to me as part of a tender, which did not have any dates at the bottom were different to the dates on the copies that counsel had (T-469). However, a fundamental problem was that none of the documents behind Tab 5 of the computer generated material contained the line reflecting either the date of printing or the date of creation as a PDF document. Such was the state of confusion that the proceedings were adjourned to 27 March so that Mr McHugh could seek leave to re-open his case to lead evidence from Mr Taylor, a consultant retained by the defendants, as to the manner in which the folder was put together by him and how it came about that these pages went into the wrong folder.
Mr Taylor gave evidence, at T-503ff. His evidence was that there was a hand-written note on the top right-hand side of the first document in Tab 5 showing that those documents were dated 1 September 2006. As to Tab 9, all of those documents should have been dated 15 November 2006 but because some of the documents were printed in landscape rather than portrait format, not all of them were dated on this day. However, as Mr Taylor looked through the documents, he became hesitant. He said, at T-505, that some of the pages were "numbered with that date on them and the others aren't". When asked if the answer was that he did not know what the date was, he said: "Well there appears - well I don't know whether they are or not".
At T-506 he gave evidence that some of the pages had been transposed. Pages 161-186 should be in the November website bundle (T-509). In other words they had to be placed behind Tab 9.
Mr Potter, who objected to the calling of the additional evidence on the basis that he could not cross-examine the defendant about it, asked some very pertinent questions in cross-examination. First of all, he was able to elicit from Mr Taylor that he did not know whose handwriting it was concerning the handwritten entry of "1 September 2006" on page 120. Despite having no idea who made this handwritten entry, Mr Taylor still insisted that he had recalled seeing the web page "as at that time", and he was unable to explain why it is that none of the documents under Tab 5 bore any imprinted date. He was also able to point out to Mr Taylor that contrary to Mr Taylor's assertion that pages printed in landscape did not show a date, page 97, which was in landscape, showed a date of 15 May 2006. Mr Potter put to Mr Taylor that it was not correct to say that a page printed in landscape did not have the date printed on it for some related reason but Mr Taylor replied "No, it depends on how the web page has been set up" (T-517). He agreed, however, it was not a universal rule.
Finally, and most crucially, Mr Potter asked him: "Q: Now could you go to page 139? Do you have that? A: Yes.
Q: Could you keep a mark open in that page and then turn to page 169? A: Correct.
Q: Now these are the two pages which originally appeared in September, and they both can't be right, can they? A: That's correct.
Q: When did you first discover this mistake, that they were both in September and they were wrong? A: When the bundle was given - sent out to you, I noticed that one of the sections after it had been sent out appeared to be thicker.
Q: So you knew before the trial had commenced there was a problem? A: Correct.
Q: Did you raise that problem with the solicitor for the defendant? A: Yes.
Q: Was anything done, to your knowledge, as a result of your report? A: No I was told it was too late.
Q: You were told it was too late? A: Yes." (T-517)
Mr Potter went on to point out that the only reason for saying the photographs that appear in the bundle in September should be in November was by virtue of a letter that Mr Taylor had written in November. He then asked: "Q: So therefore, what you're saying is that you don't recognise these documents by any date, they bear, or any specific recollection on your part as to the date that you printed them, or copied them, you only relate your answer to where they should be by virtue of an order that you put pieces of paper in another file? A: Correct."
In NAB v Rusu (1999) 47 NSWLR 309, Bryson J notes, at paragraph 17ff: "[17] Before a business record or any other document is admitted in evidence it is obviously necessary that there should be an evidentiary basis for finding it is what it purports to be. …
[18] In equity and commercial litigation proof of the authenticity of business documents does not often claim attention because practices are followed which limit the occasions when it needs attention.
[26] Section 51 does not abolish or in any way affect the need to prove that a document tendered is the document which it purports to be and subsection 48(1) does not authorise the adduction of evidence merely by tendering a document in the absence of any evidence establishing what the document is."
Bryson J noted that procedures open to the parties in those proceedings would have included discovery or notices to admit facts. The difficulty in the present case is that documents have been prepared and tendered, a case particularised and pleaded, and evidence led, on a basis which is now asserted to be incorrect.
Where a party seeks leave to re-open its case, it is relevant to enquire why the evidence was not called at the hearing. In Smith v The New South Wales Bar Association (1992) 176 CLR 256 at 266, a majority of the High Court held that: "If there was a deliberate decision not to call it, ordinarily that will tell decisively against the application."
In ASIC v Rich (2006) 235 ALR 587, Austin J, at [18] listed the factors relevant to the exercise of the discretion. One of these is the need for finality in litigation, a point made in a number of Court of Appeal decisions concerning amendments to pleadings such as Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 at [23]-[29]. The issue was considered recently in The Movie Network Channels Pty Ltd v Optus Vision Pty Ltd [2009] NSWSC 132 by Einstein J. Einstein J noted, at [27]-[29] that the party seeking the indulgence of being permitted to lead further evidence after the defendant had made forensic decision as to cross-examination and affidavit evidence, completed its documentary tender, closed its case and made closing submissions. That is factually very similar here. It is a further complication that by reason of the admission of Mr Taylor, it is clear that the defendants' solicitors knew of this change but told Mr Taylor that it was "too late" to do anything.
Finally, there is real doubt that the documents say what Mr Taylor claims they say. Even if I were to grant leave and permit the tendering of the documentary material, the concessions made by Mr Taylor to Mr Potter in cross-examination are such that the documents should meet the fate of the documents in NAB v Rusu.
While I granted the defendant leave to bring the application to re-open its case, and both parties have addressed me in relation to the evidence, I am of the view that the application to re-open the case should not be granted and that if it were, the documents in question should not be permitted to be tendered, both for the reasons explained by Bryson J in NAB v Rusu and pursuant to the provisions of s 135 Evidence Act 1995. My reasons for rejection of the tender pursuant to s 135 are factually the same as my reasons for holding that the documentation does not satisfy the threshold test of relevance.
Finally, in the event that I have erred in rejecting the tender of these documents, I should formally note that I would in any event reject Mr Taylor's explanation for the date of the documents. As he conceded in cross-examination, he does not know who wrote the handwritten date and the real reason he assumes these documents were dated in accordance with that handwritten note is because this fits in with information he has in another file. His explanation for some documents not having other dates is frankly unconvincing, but even if his explanation for the documents not having any date is correct, there is still no evidence that can satisfy me that Mr Taylor's belated explanation as to the correct date should be accepted.
Accordingly, I now turn to a consideration of the issues of truth by having regard only to the evidence as it was led at trial. I shall consider each of the construction sites on the Internet one by one.
The Wendy's restaurant site is one of three construction sites (the others being the Eastern Distributor and BMP) where the second plaintiff had no involvement. It is asserted that the Wendy's restaurant site remained on the website until December 2007, which was after these proceedings were commenced (see WB-234). The defendants submitted that this is referred to in the letter of 18 September 2006 but I am satisfied that it is not referred to until the letter of 15 November. However, nothing turns on this.
The plaintiffs' submission is that the first mention of this photograph was at paragraph 4 of the Atlantis letter of 15 November 2006 (PB-125). No copy of the photograph was sent with that letter to identify the offending image. There was just a general description of a photograph in the 'modular tank section' of the website concerning a project of another distributor, ACF. At T-103.20, Mr Larach conceded that he did not go back and look at the website to see if this was still there after he made the changes in September. However, in re-examination at T-206.35 he clarified the issue by looking at WB-124, being the website as at 1 September 2006. At the 'modular tanks' section there were two photographs. Mr Larach gave evidence that he believed the ACF reference was to the first photograph and so removed this photograph (T-208.30). This error was consistent with the answer to interrogatory 14, sworn 11 July 2008 (T-209.35). Mr Larach said at all times that he did not know where the real Wendy's photograph was taken and thought it was a Stormwater project (T-103.9).
However, Mr Larach did say that he believed that the Wendy's site was a project of Stormwater (T-107), even after receiving the letter of 15 November 2006, which categorically stated to the contrary. The defendants complain that Mr Larach's evidence that he failed to recognise the Wendy's photograph and therefore did not remove it (T-203) is implausible.
Mr Larach did make attempts to remove the photographs from the website. The question is whether it is an honest mistake or, to use the words of the imputation, he committed fraud by placing the pictures of the Wendy's project site on the website.
The defendants' written submissions (paragraph 8) complain that this inconsistency in Mr Larach's evidence, in that he removed one photograph and not another is "not explained". The evidence, in my view, falls short of actual fraud. The plaintiffs did remove a number of photographs from the website promptly, such as the residential site in Madrid. On the balance of probabilities, I am inclined to accept the evidence of Mr Larach that he intended to remove all the offending photographs and that this was a photograph he overlooked. No convincing reason (for example, the high desirability of having a project site like Wendy's restaurant on the website, or the degree of engineering difficulty) was put forward to show the advantage of this photograph, or how keeping this photograph on the site was actual fraud.
This photograph was removed after the September (first) letter of complaint. It does not appear in the 15 November copy of the website.
As I have indicated elsewhere, I accept Mr Larach's explanation in relation to this and other photographs which were removed as soon as the request from the defendants was brought to his attention.
The plaintiffs submit that this is not a situation under Maisel v Financial Times Ltd [1915] 3 KB 336 where the plaintiffs' imputations were sufficiently general to allow evidence of acts subsequent to the time of publication to be used to prove the truth of the pleaded imputations. The imputation is that Stormwater committed acts of fraud by placing certain pictures of project sites on its website. As at the date of publication those acts of fraud had either been committed or not committed and changes to the website after that date is not evidence of any act before that date. The charge in the imputation was not therefore general but specific.
I do not accept this submission. The terms of this imputation are such that the placing of pictures on the website at any time within a reasonable parameter of the imputation ought to be evidence concerning which particulars of justification can be led. The charge in the imputation is a general one of fraud. It is significant that the word "certain" is used, and certainly the matter complained of, with its reference to "pictures of project sites" is equally general.
The allegation made in the matter complained of is that "only" pictures of Atlantis project sites are featured. It was never put to Mr Larach that every single project site on the website used only Atlantis products.
The allegation of fraud made in the matter complained of identifies as misleading and deceptive conduct, the placing of these photographs on the website; what is fraudulent is that although "some of these" were "belatedly" removed, they were forced to write again, pointing out that only pictures of project sites where Atlantis products were used were being shown.
It was not suggested to Mr Larach that this was not a Stormwater project and the same reasons are applicable that this photograph was not removed from the website after 31 March 2006. The wording at WB-244 (where Mr Larach was cross-examined at T-99.5), which referred to EcoRain modular tank system appeared for the first time after the first two matters complained of in 29 January 2007. Before that there was simply no change to the website from prior to 31 March 2006 and this was not removed as it was a Stormwater project. The third matter complained of did not contain references to misleading photographs on the website and conveyed different imputations.
The plaintiffs' conduct in leaving the photograph of this unknown site on the website until some time in early 2007 may be foolish or incompetent, but on the balance of probabilities, having regard to s 140 Evidence Act 1995 I am not satisfied that this conduct amounted to fraud.
The Eastern Distributor / Woolloomooloo site is another site where the first plaintiff had no involvement of any kind. The defendants, in written submissions, assert that this publication remained on the website until 2007 and was certainly there after 15 November 2006.
Mr Larach said in his evidence that this was removed after the September letter. The next Atlantis letter (15 November) stated that it was still there (paragraph 10, PB-126). However it is not depicted in the 15 November copy of the website (Tab 9 WB).
At T-166.24 Mr Larach was asked in cross-examination: "Q. And it was there right through until September, wasn't it? A. Correct." 104. There was no suggestion in cross-examination that it stayed on the website despite the letter of 15 November. As I have noted in the introductory section to the defence of truth, despite Mr Taylor's insistence that it must have been there for him to mention it in his letter, that is no explanation if his letter was in error. It makes no sense for other non Stormwater sites to be removed and to leave what is obviously a Sydney project on the website. I find that this site was removed after the first complaint by Atlantis in September. This is insufficient evidence, having regard to the standard under s 140, to amount to fraud, even on the terms put forward in the matter complained of (which restricted its fraud allegations to photographs not removed after the September letter).
Although this is relied on at item 5 on page 2 of the defendants' Outline of Submissions, there are no references to the WB or any submission about being put to Mr Larach in cross-examination. There is no reference in the submissions to when this photograph was on the website, or removed. I do not regard this as sufficient evidence to establish fraud.
This was a Stormwater site. At T-97.11, Mr Larach was asked about these pictures: "Q. There's no acknowledgment on that page, or anywhere on the website, as at 29 January 2007, that there are pictures of Atlantis products, is there? A. No.
Q. And yet there are pictures of Atlantis products, aren't there? A. The aim of the Stormwater Solution website is to show projects that Stormwater Solutions has been involved, and the expertise which Stormwater Solution has in these products or systems."
Again this was kept on the website as it was a Stormwater project and was illustrative of projects carried out by Stormwater. There is nothing on the relevant pages to suggest that the boxes depicted were made by EcoRain or Stormwater and the pictures were retained on the website for that reason.
This was also a Stormwater site. It was not fraud for the company that had supplied everything except the product to allow a photograph to remain on the website showing its installation, for the same reasons as set out above.
As with the 'unknown' site, the wording which was put to Mr Larach in cross-examination appeared on the website after publication of the first two matters complained of. The third matter complained of did not address any issue of misleading photographs on the website (the only reference to the website was an allegation that 'Additionally they blatantly copied our website' (line 23 PB-16). This was not a reference to any of these photographs.
Mr Larach explained the chronology of the BMP study in re-examination at T-210.40. Firstly it is necessary to look at the web page as at 15 May 2006 (WB-97) and from that it is clear that the photographs were historically left on the website along with the old words under 'the problem' and 'the solution'. These photographs were of a Stormwater project so Mr Larach left them on the website. Of the three photographs, only one contains a discernible picture of a rain tank box partially covered in sand. When one then looks at the same web page in January 2007, it is clear that Mr Larach has added new wording but not removed the photographs.
Mr Larach gave evidence (T-212.10) that he added the references to EcoRain on the website as they had carried out projects with EcoRain boxes by January 2007. The relevance of this is that there was no need to hold out to anyone that the photographs were something they were not, as it would have been just as easy to photograph EcoRain jobs. The existing photographs were to all indiscernible from those which would be present for an EcoRain installation. There was therefore no dishonesty involved as this was a "historic" retention of these photographs, where the writing on the web page later changed in 2007.
I reject the plaintiffs' submissions concerning Maisel. However, there is insufficient evidence to amount to fraud. At its highest, this conduct might be misleading or even deceptive but it cannot amount to fraud, and the defendants' statement of "straight out fraud", in bold letters, cannot make it so.
I accept the explanation of Mr Larach that he was busy setting up a new business and that he left photographs on the website, which had been legitimately there until 1 April 2006, showing sites where Stormwater expertise (using Atlantis products) had been used. This particular group of photographs did not depict a Stormwater project site. How, then, did the plaintiffs obtain it? As I understand the evidence, these photographs were either taken by Stormwater during installation or, in the case of the three non-Stormwater sites, supplied by the defendants for promotional purposes. I have also accepted Mr Larach's evidence that as soon as the defendants notified him of their objections he removed photographs of the Atlantis products, including those installed by Stormwater. Again, this may have been foolish of him, or even misleading or deceptive, but it is not fraud.
Imputations 6(b) and 8(b): That Stormwater had knowingly and blatantly overstated the experience of its consultants on its website.
The defendants submit that as a matter of substantial truth Stormwater Solutions had not been in business for 25 years or sold products in 30 countries. That, however, is not the imputation. The imputation related to the experience of its consultants on the website and in particular made disparaging remarks about Mr Larach and Mr Arriagada.
The defendants submit at paragraph 18 of the defendants' Outline of Submissions, that the reference at lines 45-56 is limited to the experience of Mr Larach and Mr Arriagada, which is less than 25 years. It is the imputation which must be justified and the imputation cannot be justified by limiting 'its consultants' to two. As a matter of practical fact, the defendants simply assumed that there were only two consultants and published the defamatory imputation on this basis.
The evidence at T-51.30 from Mr Larach was: "Q. As at the date of this letter, being 5 December 2006 that you had consultants with over 25 years experience in over 30 countries worldwide? A. Yeah, we've had it over 25 years as a matter of fact …
POTTER Q. Just to expand on that, how much experience have you got? A. Up to that day I probably had 14 years myself.
Q. And who else, Mr Arriagada? A. I had Mr Arriagada, which had four years, say four years. Then we had one of our consultants, Mr Montgomery, which had over 30 years in the water industry and we had Mr David Ruth which had another two/three years, I would say, or four.
Q. Anybody else? A. Maybe even more than four years, I would say, maybe Ruth.
Q. Any other consultants? A. And Mary Angle, which had at least another three to four years.
Q. In between all those consultants, did they have experience in the water management business in 30 countries? A. Yes.
Q. I won't ask you about details of the specific countries. MCHUGH: I'd like the details.
HER HONOUR Q. What were some of the 30 countries? Just give us as many as you can think of off the top of your head? A. Sure. While I was with Atlantis at the time, we had most of the Asian countries, including Singapore, Malaysia, Korea.
Q. No, that will do. Most of the Asian countries while you were with defendant? A. Yeah, most of the Asian countries. A number of European countries, you know, we were selling at the time, countries in South America as well."
Mr Montgomery confirmed his long (and impressive) experience in the field of 'water management business' at T-177.15. He was not cross-examined as to anything which could cast doubt as to his evidence of length of experience and as to the many countries in which he had worked.
The defendants submit (paragraph 19, written submissions) that Stormwater had not been in business for 25 years. The closest entry to 31 March is the copy of the web page of 20 April 2006 where the entry on page 2 states "We offer the most advanced range of water management systems in the world today, bringing together over 25 years of experience in over 30 countries around the world". I accept the plaintiffs' submission that this is a reference to the people within the organisation. In the matter complained of, this same interpretation is given by the defendants (only limited to two people).
The defendants must not only establish that the second plaintiff over-stated the experience of its consultants on its website but that it did so knowingly and blatantly. The imputation requires the defendants to establish prior knowledge on the part of the second plaintiff that the experience of its consultants was overstated on its website. Mr Larach said in his evidence he was referring to the experience of both himself and his consultants.
The defence of truth to this imputation fails.
Imputations 10(a) and 10(b) - That Stormwater (Mr Larach) behaved in such an underhanded and devious way that one needed to be extremely cautious in dealing with it (him).
The particulars of truth supplied during the trial on 10 February 2009, duplicate the particulars for the truth of imputations in the first and second matters complained of. That is the complained behaviour relates to the depiction of photographs on the website of Stormwater, not to any fact or matter referred to in the third matter complained of.
There is no attempt to justify the facts of the letter to Denver Plastics but upon evidence of extraneous facts to justify these imputations. The defendants are entitled to do so. However, the truth or falsity of the imputation requires an examination of the whole of the conduct of the plaintiffs.
The plaintiffs submit that there was no underhanded or devious conduct in adding new wording to the BMP material in January 2007 as Mr Larach said there had been plenty of experience of EcoRain undertaking this work as at that date and so no one was mislead by the experience that was described in the words set out on that page in January. The photographs remaining were illustrative of the type of job undertaken and not a misleading statement that Stormwater had experience of this work, when in fact it did not.
The defendants, in written submissions, refer to the copying of the Atlantis modular tank system and the Copycat system and that such is substantially identical to the patented system which is substantially true. It is asserted that Mr Larach actually agreed with this (T-168).
The evidence in these proceedings, essentially by reason of the forensic decision of the parties not to lead expert evidence of copying or trade mark infringement, falls short of establishing that the plaintiffs' product is a copy (let alone a blatant copy) of the defendants' product. Nor is it true that the defendants "blatantly copied our website" and in particular it is not true that the defendants were the proprietor of the trade mark EcoRain in the United States. This is a defamation case, not an action for damages for breach of trade mark rights. Although the letter asserts that the "Copycat" system is an infringement, no proceedings were ever brought in any country, nor have I been asked to determine this issue. Pursuant to s 136 Evidence Act, the experts' reports tendered by the defendants were specifically restricted to the qualified privilege defence. Those experts were not made available for cross-examination and I do not propose to embark on the complex and difficult task of determining whether the plaintiffs' products are copies of the defendants' products without such assistance.
I have set out below in the section on contextual truth my reasons for rejecting all of the contextual imputations. The failure of these imputations means that there is no evidence upon which this imputation can be sustained.
The amended defence at paragraphs 16.5 and 17.4 seeks to plead back those of the plaintiffs' imputations which have been successfully justified in order to combine these with the contextual imputations for the purpose of balancing the true contextual imputations against the plaintiffs' imputations not successfully proved true.
Section 26 of the 2005 Act is worded quite differently to s 16 Defamation Act 1974 (NSW). The contextual imputations are defined as those in addition to the plaintiffs' imputations. The balancing test is then between the contextual imputations and the plaintiffs' imputations (not between the contextual imputations plus the plaintiff's justified imputations against the plaintiffs' unjustified imputations). The form of pleading in the amended defence appears to have been copied from a 1974 Act precedent. However, the defendants do not intend to argue that the effect of s 26 of the 2005 Act is the same as s 16 of the 1974 Act in this respect.
The questions to be asked on a defence of contextual truth were succinctly set out by Simpson J in Zunter v John Fairfax Publications Pty Ltd [2005] NSWSC 759 at [45] (although Zunter was a 1974 Act case, the questions will still be the same, save for the requirement of public interest or qualified privilege): "[45] The questions which arise where a defence of contextual truth is pleaded are the following:
(i) does any one (or do any more) of the imputations pleaded by the plaintiff relate to a matter of public interest?; alternatively, was any one (or were any more) of those imputations published under qualified privilege?; (ii) if so, was any one (or were any more) of the imputations pleaded by the defendant as having been published contextually to the imputations pleaded by the plaintiff conveyed by the matter complained of?; (iii) if so, was any one (or were any more) of such imputations defamatory of the plaintiff?; (iv) in respect of any contextual imputation found to have been conveyed and to be defamatory of the plaintiff, did any one (or any more) of those imputations relate to a matter of public interest?; alternatively, was any one (or were any more) of such imputations published under qualified privilege?; (v) if so, was any such imputation a matter of substantial truth?; (vi) if so, does the substantial truth of any such contextual imputation have the consequence that publication of the imputation complained of by the plaintiff does not further injure his/her/its reputation?"
In pleading contextual truth a defendant cannot be heard to say that he "almost got it right". A contextual imputation pleading an imputation of a lesser nature cannot outweigh a more serious imputation pleaded by the plaintiff.
Section 16 of the 1974 Act provides as follows: " 16 Truth: contextual imputations
(1) Where an imputation complained of is made by the publication of any report, article, letter, note, picture, oral utterance or other thing and another imputation is made by the same publication, the latter imputation is, for the purposes of this section, contextual to the imputation complained of.
(2) It is a defence to any imputation complained of that: (a) the imputation relates to a matter of public interest or is published under qualified privilege, (b) one or more imputations contextual to the imputation complained of: (i) relate to a matter of public interest or are published under qualified privilege, and (ii) are matters of substantial truth, and
(c) by reason that those contextual imputations are matters of substantial truth, the imputation complained of does not further injure the reputation of the plaintiff."
Under the 1974 Act, imputations pleaded by the plaintiff could be "pleaded back" by the defendant, in addition to imputations the defendant pleaded and which had not been pleaded by the plaintiff. Both kinds of imputation, if pleaded contextually and established to be true, were capable of defeating those imputations pleaded by the plaintiff which had not been established to be true. In other words, the plaintiff's imputations, if "pleaded back" by the defendant, had the same result (i.e. the plaintiff lost the action) as imputations pleaded only by the defendant, providing the "swamping" exercise was successful.
However, it is possible that this is no longer the case under the new Act. There was some opposition from the other States, during the discussion of the provisions of the 2005 Act, to a wholesale adoption of the 1974 Act contextual provisions. The terms of the 2005 Act differ slightly from the 1974 Act, perhaps as a result.
Section 26 of the 2005 Act provides: " 26 Defence of contextual truth
It is a defence to the publication of defamatory matter if the defendant proves that: (a) the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations ("contextual imputations") that are substantially true, and
(b) the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations."
The new Act (which refers to imputations "in addition" to the plaintiff's imputations) may result in a situation similar to the role of imputations under s 5 Defamation Act 1952 (UK) ("the UK Act"). The use of these words may have the result (whether intended or not) that the pleading back of one of the plaintiff's imputations may be relevant as to mitigation, but cannot defeat the action in the same way as was possible under the 1974 Act.
Section 5 of the UK Act provides as follows: " Justification
In an action for libel or slander in respect of words containing two or more distinct charges against the plaintiff, a defence of justification shall not fail by reason only that the truth of every charge is not proved if the words not proved to be true do not materially injure the plaintiff ' s reputation having regard to the truth of the remaining charges."
Thus, if a publication asserts that the plaintiff is a swindler, a liar and entered the country illegally (to use the well-known example cited in Hepburn v TCN Channel Nine P/L [1984] 1 NSWLR 386 at 397), a plaintiff may now be obliged to plead all three imputations in order to avoid the loss of the action through "swamping". If a plaintiff pleads only the imputations of illegal entry, the imputation of swindling and lying can be pleaded by the defendant to defeat the action. However, if a plaintiff pleads all three imputations and the defendant successfully proves the truth of one or both of the others (swindling and lying), the argument would be that the truth of these imputations would only go to mitigation of damages.
The language of s 26 has not yet been the subject of consideration by other courts. The pleadings in this case, however, give a good example of imputations which the plaintiffs could have pleaded but failed to do so. If one or more of the defendants' imputations were to succeed (assuming they could outweigh the plaintiffs' imputations) the plaintiffs may lose the action. Would that occur if the defence of one of the plaintiff's imputations succeeded? This is a question of statutory interpretation which, by reason of my findings of fact in this case, is not necessary for me to determine, but it is an argument that has been raised in submissions and I must accordingly refer to it. Although it is not necessary for me to determine the issue, I note my view that "another" (the 1974 Act) and "additional" (the 2005 Act) mean the same thing, and that the regime under the 1974 Act applies to the 2005 Act defence.
Are the contextual imputations conveyed from the matters complained of and are they defamatory of the plaintiffs?
In the amended defence filed on 18 March 2008 the contextual imputations for both the first and second matters complained of are as follows: (a) the second plaintiff was selling or purporting to sell copies of Atlantis products without permission of Atlantis and was thereby acting dishonestly; (b) the second plaintiff may have been selling or purporting to sell products branded with a copy of an Atlantis trade mark and was thereby acting dishonestly; (c) such products were being produced in China from plans copied by the second plaintiff and the second plaintiff was thereby acting dishonestly; (d) [This imputation was not pressed] (e) the second plaintiff's website falsely stated its products were patented and the second plaintiff was thereby acting dishonestly; (f) one of the second plaintiff's employees had been a used car salesman and the second plaintiff was untrustworthy; (g) the second plaintiffs made products in such a way as they could be substituted for project specification which specified Atlantis products and the second plaintiff was thereby acting underhandedly; and, (h) the second plaintiff was not a company to do business with.
Contextual Imputation (a) - Is this conveyed by the first matter complained of and defamatory of the second plaintiff?
Proof of the contextual imputation comprises three elements; firstly an act that the second plaintiff was selling or purporting to sell copies of Atlantis products, secondly, that those copies were being sold without the permission of Atlantis, and thirdly that such conduct was dishonest. It would clearly be defamatory to say of a person or company that they were selling copies of other products dishonestly. The reference to "copy" is at line 15: " However it appears that another company is attempting to replace our Atlantis products with a copied product and even [sic] may even have been branded with a copy of our new trademark. It is our understanding that a [sic] Chinese copied products are being offered for sale through Stormwater Solutions LLC or Eco-rain Systems Inc ."
Is contextual imputation (b) conveyed by the first matter complained of and defamatory of the second plaintiff?
Although not pleaded as a "fall back" (or lesser) imputation, the imputation that the second plaintiff "may have" been selling copies is clearly intended as an alternative if (a) is not made out. I am satisfied (a) is made out and therefore (b) is not conveyed. Any imputation conveying dishonesty is capable of causing ordinary right-thinking members of the community to think less of a person. I note, however, from the point of view of "contextual" imputations, that dishonesty falls well short of fraud.
Is contextual imputation (c) conveyed by the first matter complained of and defamatory of the second plaintiff?
No challenge has been taken on grounds of form although there is considerable overlap. This imputation is clearly conveyed by the reference to "Chinese copied products being offered for sale". The imputation of dishonesty is conveyed and defamatory.
Is contextual imputation (e) conveyed by the first matter complained of and defamatory of the second plaintiff?
Line 37 of the first matter complained of states that the second plaintiff's website stated that on 15 May 2006 that the products were patented and a search of the US patent records demonstrated that they were not patented.
The ordinary reasonable reader would be aware of some very basic concepts of patent law as being a law designed to enable people to register their original designs and ideas. The ordinary reasonable reader would find such an imputation conveyed because of such knowledge. It is not disputed by the plaintiffs that this contextual imputation is defamatory.
Is contextual imputation (f) conveyed by the first matter complained of and defamatory of the second plaintiff?
There is no doubt that the first matter complained of states at line 51, that Mr Larach was a former employee of the second plaintiff and prior to that he sold used cars. The inference is that in not revealing that one of its two employees is only a used car salesman, the second plaintiff is untrustworthy. This imputation is conveyed and untrustworthiness would cause ordinary right-thinking persons to think less of the plaintiff.
Is contextual imputation (g) conveyed by the first matter complained of and defamatory of the second plaintiff?
Lines 88-91 of the first matter complained of are relied upon to convey this contextual imputation. The imputation states in effect that the second plaintiff made plates the same size as Atlantis plates so it could substitute them in connection with an "already prepared" project specification which uses Atlantis plates. "Underhandedly" connotes conduct of a dishonest kind. This imputation is conveyed and would be considered defamatory by ordinary right-thinking members of the community.
Is contextual imputation (h) conveyed by the first matter complained of and defamatory of the second plaintiff?
This is a rhetorical imputation which catches up all the other imputations and does not convey any meaning which differs from the other imputations. It could mean anything from dishonesty to incompetence. If it has a meaning which differs from the other imputations, that needs to be specified. As a matter of common sense, most prudent business persons are unlikely to want to do business with companies selling copy products and/or using dishonest or underhand business practices, but the imputation needs to specify which of these kinds of conduct is referred to. The failure of this imputation to specify the conduct of the company means that the information is mere surplusage, to use the description given by the Court of Appeal in McPhersons Ltd v Hickie (1995) Aust Torts Reports 81-348. I accordingly hold that this imputation is incapable of being conveyed and I strike it out.
The contextual imputations are identical for the second matter complained of and I make the same findings in relation to this publication, including striking out imputation (h).
It is assumed that paragraph 17 of the defence is intended to plead contextual truth to the third matter complained of as against both plaintiffs.
The contextual imputations are as follows: (a) the plaintiffs and each of them were selling or purporting to sell copies of Atlantis products without permission and were thereby acting dishonestly; (b) the plaintiffs and each of them may have been selling or purporting to sell products branded with a copy of an Atlantis trade mark without permission and were thereby acting dishonestly; (c) [This imputation was not pressed.] (d) the plaintiffs and each of them had copied the, or part of the, Atlantis website and were thereby acting dishonestly.
Are contextual imputations 17(a), (b) and (d) conveyed by the third matter complained of?
Although this publication differs in tone and substance, each of these imputations is clearly capable of being conveyed to the ordinary reasonable reader and is defamatory of each of the plaintiffs.
Have the defendants succeeded in establishing the substantial truth of the contextual imputations?
Contextual imputation (a) - The second plaintiff was selling or purporting to sell copies of Atlantis products without permission of Atlantis and was thereby acting dishonestly.
A fundamental error concerning this imputation is the failure of the defendants to commence proceedings and obtaining a judgment in any jurisdiction against the plaintiffs for infringement of patent, trade mark, design or copyright or to lead expert evidence in these proceedings. Although Mr Urriola was at pains to paint a picture that such litigation was expensive and unpredictable and that he promised his wife he would not commence such proceedings, the fact remains that the defendants have never availed themselves of their right to a remedy through legal process against the plaintiffs. Their only action has been to write letters to those associated with the business of the plaintiffs alleging such infringement and threatening the addressees with litigation for contributory conduct.
While Mr Urriola and Atlantis may have their reasons for failing to enforce legal rights, this is insufficient reason for failing to justify a contextual imputation that the EcoRain/Stormwater product infringed Atlantis' US patent or trade mark. Such a step would not involve protracted litigation and could have been contested in this court as part of this trial. Further, although that imputation was withdrawn, imputations that copies were sold without permission which constituted dishonesty remain.
On that basis alone, even if the imputation is found to be conveyed and defamatory, it cannot succeed as a matter of substantial truth as it is not an act of dishonesty to produce a product which, to the untrained eye may look very similar but which does not infringe any known legal right of the defendants. There is no wrongful or unlawful act contained in the imputation which could render the conduct dishonest.
In a series of decisions, the Court of Appeal has warned trial judges that, even with comparatively simple exhibits such as photographs, the judge should be careful to be guided by expert evidence, and should not attempt to read or construe photographic evidence or maps so as to determine "which of the explanations given by the witnesses appears to be the most worthy of acceptance": Short v Barrett [1990] NSWCA 164, referred to with approval by Tobias JA in Angel v Hawkesbury City Council [2008] NSWCA 130 at [71]; see also Blacktown City Council v Hocking (2008) Aust Torts Rep, 81-956.
The exercise the defendants ask me to embark upon goes far beyond mere examination of photographs or even of the items in question. In circumstances where the defendants have neither tendered an expert report in accordance with the rules, nor provided the expert for cross-examination, I am being invited to make findings of fact that the second plaintiff was selling or purporting to sell "copies" of Atlantis products, that these were produced in China from plans copied by the second plaintiff and that the products were made in such a way that they could be substituted for Atlantis products.
The defendants' explanation in submissions for not calling this evidence and for not seeking to prove by way of expert evidence, that the second plaintiff's products are indeed infringements, or that the tort of passing off has been committed, is that to do so would result in "issue estoppel" (T-431-2). Counsel for the defendants also submits that the Court of Appeal has indicated in a number of decisions that actions for defamation cannot be defended by cross-claims, and that the defendants are reluctant to ask this Court to rule on issues of intellectual property in those circumstances.
This is not correct. Where defences and/or causes of action raise matters of this kind, it is open to the parties to have them transferred to the Federal Court; or, for that matter, to call appropriate expert evidence in this Court. What is not possible is for a party to tender a bundle of designs and untested assertions in letters from patent attorneys and leave it to the trial judge to assess, notwithstanding the restricted basis upon which those documents were tendered and notwithstanding the absence of cross-examination, issues such as whether the plaintiffs' product is a copy of the defendants' product.
In any event, the product designed by Mr Larach was not an identical copy, according to the advices he received from Mr Taylor and Trojan Law Offices. There were material differences. Dishonesty requires the notion of conscious wrongdoing in the sense of knowledge of a dishonest act.
Mr Larach took a number of steps along the way to ensure that his design did not contravene any legal right of the defendants including: (a) seeking the advice of Mr Paul Taylor as to whether his product (which at that stage was in a sample form) infringed patent 549. He was advised by Mr Taylor that it did not infringe because of its design and because of the existence of prior art (PB-78 and T-396.46 and T-400.30). Although Mr Taylor said his view later changed, he did not convey anything to that effect to Mr Larach (T-401.29);
(b) seeking advice from US patent agents, Trojan Law Offices who confirmed the oral advice given in March 2006, in their letter of 4 April 2006 (PB-81). This ten page advice is an impressive and careful review (in fact, more so than the advice of Mr Taylor). Mr Larach gave evidence that he considered the oral and written advice carefully at the time (T-37.36);
(c) he instructed Trojan to send a letter on 5 June 2006 (PB-111) to the defendants (in response to the defendants' letter at PB-102) outlining the reasons for non infringement of patent 549, a copy of which was seen at the time by Mr Urriola (T-296.38) and effectively putting the defendants on notice of the precise reasons why there was no infringement of patent;
(d) causing trade mark attorneys in Australia and the US to write to the defendants in order to inform them that Stormwater/EcoRain had prior commercial use of the mark EcoRain and that attempts by the defendants to have them registered in Australia and the US were without foundation (PB-112 and 115);
(e) registering the design in Australia of the plaintiffs' plans (T-114.37) and applying for a patent in Australia and the US for the plaintiffs product (PB-147 and 122).
Mr Larach was cross-examined on this at length. He denied that he was dishonest in his design. He said it was not a 'copycat' product.
The defendants have grouped their submissions in respect of what they term to be the 'copying' contextual imputations (namely (a), (c) (g) and (h)). The following submissions are responded to for imputation (a): (a) The defendants rely on a statement by the then lawyer for Stormwater in the statement of claim in California civil proceedings at DB-52, to the effect that anticipated sales for the following two years (after October 2005) were in the order of $10 million as evidence that this figure could only be so high by including all potential revenue from the LAX tender. It is submitted that this invites the conclusion that Stormwater must have started copying the Atlantis box whilst still an Atlantis distributor. The foundation for this is by inference only. The figure is a future estimate based on marketing potential for the next two years in California and the airport tender did not occur until the following year (T-124). This is not an evidential basis for proving that Stormwater copied Atlantis products.
(b) The defendants rely on the Heng letter (DB-65) as evidence that Mr Larach tried to persuade Mr Heng to manufacture exact copies of Atlantis products. Mr Heng, who was called to give evidence by telephone, was not an impressive witness. This document could have been prepared at any time. It is undated and unsigned and it was not produced until just before the trial, although the reference to "Chinese" copies must have meant that the defendants had some kind of information at that time, in which case the failure to particularise this letter is surprising.
(c) In cross-examination, Mr Larach was given a drawing "test" in the hope of catching him out as unable to reproduce his sketch plan which he sent to China. Notwithstanding the difficulty of drawing a complicated design in the witness box, he was able to reproduce a sketch of the EcoRain panel. I am satisfied by his ability to do so that he prepared sketches of this design as he claims.
Contextual imputation (b) - The second plaintiff may have been selling or purporting to sell products branded with a copy of an Atlantis trade mark and was thereby acting dishonestly.
The defendants provide no written submissions in support of the truth of this contextual imputation.
Mr Urriola made the following admission at T-276.25: "Q. You admitted in evidence, did you not, that when you made applications for trade marks for EcoRain in both Australia and in America, you were aware that Stormwater Solutions were commercially using that name? A. Yes.
Q. Now I repeat my second question to you. Therefore, your application for a trade mark was dishonest? A. That's your judgment.
Q. You only made the application to stop Stormwater Solutions business in Australia and in America using the name EcoRain, didn't you? A. Correct."
On the basis of those answers, Stormwater was not selling any product branded with a copy of an Atlantis trade mark. The attempt by Atlantis to secure a registered trade mark was not bona fide (for example, under s 58A of the Trade Marks Act 1995 (Cth), an application may be successfully opposed on the ground of first use before the applicant and first use by Stormwater was admitted).
Another entity (Rocla Pty Ltd) owned the Australian trade mark for EcoRain (PB-109). Atlantis failed to pursue its US application which was treated as abandoned by the US Patent and Trade Mark office (PB-151). At no time therefore did Atlantis have the benefit of the EcoRain trade mark and this contextual imputation is not therefore true.
Contextual imputation (c) - Such products were being produced in China from plans copied by the second plaintiff and the second plaintiff was thereby acting dishonestly.
There was no evidence of any plan of an Atlantis module being taken by Mr Larach to China for the purpose of manufacturing a module which was a copy of the Atlantis module. Mr Larach produced copies of the plans sent to China and they appear at DB-92-106. They are not a copy of the Atlantis plans, but plans for the Stormwater module.
Exhibit 5 was tendered by the defendants (T-140.11) which is a plan of an Atlantis injection moulding. It is not clear whether it was suggested that this plan was the one used by Mr Larach, but at T-139.4 Mr Larach referred to the Stormwater injection moulding plan at DB-92, which is different to the Atlantis plan.
The plan in DB-67 was shown to Mr Urriola (T-246.46), but was not put to Mr Larach during cross-examination about his activities in China. The lines look similar to the Larach plates, but it is not clear what this document is intended to prove, other than that Mr Larach had his initial products made in China.
There was no evidence from Mr Urriola that he found any evidence that any Atlantis "copy" was being produced for Stormwater in China. He simply found evidence that a product was being manufactured in China for Stormwater, which has at all times been admitted. It was also suggested that Mr Larach took Atlantis plates to China as the EcoRain plates were the same size. This was denied and there was no evidence that this happened. Mr Larach had his own drawings and sent those to China. There is no evidence that any Atlantis plans were copied by Stormwater.
Contextual imputation (e) - The second plaintiff's website falsely stated its products were patented and the second plaintiff was thereby acting dishonestly.
The plaintiffs admitted that the Stormwater website should not have said that "all products are patented". On receipt of the first complaint in September 2006 from Atlantis, Mr Larach said that he took advice and that the website should say "patent pending" as no grant had been made besides registering under the Patent Cooperation Treaty ("PCT"). At T-42.5, Mr Larach said: "Q. What did Mr Trojan advice you? A. Well I was told that we have, in fact, a PCT, you know which is a provisional patent, if you want to put it, a worldwide patent for whatever countries belong to that treaty, and that we had a US patent application and we did not, in fact, have a patent in the US. He advised us that we should change that and put instead "Patent pending."
Q. What steps did you take after that? A. We done just that."
The defendants knew about this entry on the website since at least May 2006 (the first appearance in the Web Bundle is at 78) yet raised no complaint until September, when it was removed forthwith. The plaintiffs submit there was no dishonesty, but an honest mistake, which was rectified immediately after it was pointed out by Atlantis. There was no denial or dispute after the complaint, it was simply removed and later replaced with "patent pending".
On the balance of probabilities (this not being an imputation connoting criminal conduct) I am satisfied that the second plaintiff's explanation should be accepted. However, if I were not satisfied, and considered that the plaintiffs dishonestly said they had a patent when they knew their application had not yet been granted, the truth of this imputation could never outweigh any of the plaintiffs' imputations in any of the three matters complained of. To the ordinary reasonable reader this would be regarded as, at worst, an unfortunate example of puffery. If the patent had already been refused, or never applied for, that might make a difference.
Contextual imputation (f) - One of the second plaintiff's employees had been a used car salesman and the second plaintiff was untrustworthy.
No particulars were provided and no submissions are made in respect of this imputation. Many people start out their careers in menial jobs; a former Australian Prime Minister left school at the age of 15 to work in a department store. The fact that a person has been a used car salesman is not, without more, capable of conveying dishonesty or untrustworthiness. There is no evidence to support this imputation in any event.
Contextual imputation (g) - The second plaintiff's made products in such a way as they could be substituted for project specification which specified Atlantis products and the second plaintiff was thereby acting underhandedly.
At T-193.29 Mr Larach answered in cross-examination: "Q. All right. You agree that Stormwater Solutions, the website featured products in such a way which those products could be substituted for project specifications which specified Atlantis products. Correct? A. Well we left the projects that were Stormwater Solution products, yes. And they did have Atlantis products, yes.
Q. So they could be substituted one for the other, couldn't they? A. No. You mean in what respects?
Q. Well in some respects, specifically the modular drainage tapes, they could be substituted couldn't they? A. Sure."
This is not an admission. If the modules are the same size, then hypothetically they could be used in a project where Atlantis modules were originally specified. However there was no evidence that Stormwater substituted its own product on a project where Atlantis was specified. There is no evidence that this has ever occurred, nor that the products were made this way with that specific intention in mind.
Mr Larach stated that he decided to make his panels the same size for a number of reasons including at T-143.31: "Q. Now, is that all just a coincidence is it? A. No, it's not a coincidence. I work out at - the size was correct, to have a higher load-bearing capabilities and also from the practical point of view. It was easy for packing, for carrying once assembled and all those sort of things." 179. Even if this module could be used, if a situation did arise at some stage that an Atlantis product was originally specified, then in the absence of infringement it is up to the customer as to which product to ultimately accept. There is nothing underhanded or clandestine in such a situation.
Contextual imputation (h) - The second plaintiff was not a company to do business with.
For the reasons stated above, this contextual imputation is incapable of standing alone. It is so vague and general as to be impossible to justify on its own terms.
The first two imputations are identical to contextual imputations 16(a) and 16(b), save that they apply to both plaintiffs. They fail for the same reasons. The defence of contextual truth fails for the same reasons.
Contextual imputation 17(d) - The plaintiffs and each of them had copied the, or part of the, Atlantis website and were thereby acting dishonestly.
The particulars of truth for this imputation are: Paragraph 17 (d): The second plaintiff's website featured pictures of projects where Atlantis products were used. The first plaintiff is an officer of the second plaintiff. Such pictures and products are the same referred to in the particulars of truth to paragraph 14 (a) of the Further Amended Defence.
Paragraph 14 (a) of the defence states: "(a) the web site of the second plaintiff at the relevant times showed pictures of project sites where the second defendant's products were used and in so doing misrepresented that the second plaintiff's products were being used at those sites."
Even if these particulars were proved to be true, this would not justify an imputation that the plaintiffs copied the website of Atlantis. The photographs were provided by Atlantis to Stormwater to put on its website at a time when it was a distributor for Atlantis. They were not copied from the website of Atlantis, nor has it ever been suggested that photographs of project sites were dishonestly copied by Stormwater from the Atlantis website. What occurred was that many of the photographs were not removed after the end of the distribution period, until a complaint was made by Atlantis. This is not dishonest copying of the website of Atlantis.
The defendants have therefore failed to justify this contextual imputation.
The balancing exercise is as expressed in Zunter. Does the substantial truth of any one or more contextual imputations have the consequence that publication of the imputation complained of by the plaintiff does not further injure his/her/its reputation?
The majority (Spigelman CJ with Rolfe AJA agreeing) in John Fairfax Publications Pty Limited v Blake [2001] NSWCA 434 favoured focussing upon the facts, matters and circumstances said to establish the truth of the contextual imputation rather than the terms of the imputation itself and weighing imputation against imputation.
The defendants' decision not to pursue the most serious contextual imputation (infringement of US law) means that the remainder of the contextual imputations (taken individually or together) if true, would be less serious than an allegation of outright fraud. In the absence of justifying this imputation on the first two matters complained of, the defence of contextual truth could not succeed even if one or more were true.
As to the third matter complained of, the contextual imputations, when balanced against imputations of underhanded and devious conduct would not, if justified, further harm the plaintiffs' reputations. As I have found they are not justified, the defence fails here as well.
None of the contextual imputations pleaded by the defendants can be justified. This brings me to a consideration of the defence of qualified privilege.
Common law qualified privilege - First matter complained of
The first matter complained of was published by the defendants to the builder contractor for the LAX Airport project in which the second plaintiff was awarded the contract for the installation of underground infiltration/storage tanks at the airport.
On the face of the first matter complained of, there is a community of interest, that is where the publisher had an interest which corresponds with the interest of the recipient of the publication (Parke B in Toogood v Spyring (1834) 1 Cr M & R 181) in view of the fact that allegations are made by the defendants concerning the second plaintiff's products used in the LAX Airport project.
However, as stated in the majority judgment Bashford v Information Australia (2004) 218 CLR 366 at [54] : "In determining whether the occasion was privileged, the Court examines all the circumstances of the case. They include the nature of the defamatory communication, the status of position of the publisher, the number of recipients and the nature of the interest they had in receiving it, and the time, place and manner of, and reason for, the publication. After considering these matters, the Court makes a judgment as to whether the publisher had a duty or interest that justified making the publication and whether the recipients, or some of them, had a duty to receive or interest in receiving it."
Much of the information contained in the first matter complained of is not relevant in any way to the second plaintiff's participation in the LAX project. Much of the first matter complained of is gratuitously defamatory and the imputations pleaded in respect of the second defendant's website have no connection with the supply of the second defendant's products and services to Tutor Saliba in this project.
In Bashford at [77]-[78] the majority judgment said: " [77] But where neither life is in immediate danger nor harm to the person or injury to property imminent, the fact that the defendant has volunteered defamatory matter is likely to be decisive against a finding of qualified privilege. Thus, the customer of a shopkeeper in answer to a request by a potential customer is entitled to give his or her opinion as to the quality of the shopkeeper's goods, and when he or she does so, the reply will be published on an occasion of qualified privilege. But the case is different where the customer voluntarily defames the character or reputation of the shopkeeper to potential customers. The point is well illustrated by the famous case of Toogood v Spyring .
[78] In Toogood , the defendant required his landlord to effect repairs on the tenanted property; the landlord's agent sent out two workmen to do the work, one of whom was the plaintiff. Later the defendant complained to the plaintiff in the presence of one Taylor that the plaintiff had misconducted himself in doing the work. Still later the defendant repeated the charge to Taylor in the absence of the plaintiff and later again to the landlord's agent. The Court of Exchequer held that the statements were made on occasions of qualified privilege, except for the statement made to Taylor in the absence of the plaintiff. The Court held that both the plaintiff and the agent had such an interest in being informed of the charge against the plaintiff that the defendant was entitled to protect his interests by telling them of his concerns. Taylor, however, had no interest in the matter that could justify the defendant telling him of the plaintiff's misconduct."
Also at [192]-[194] Kirby J said: " [192] Simply because, in a general sense, the publication of matter defamatory of an individual is included in a context of discussion of a subject of public interest on which there is the requisite reciprocity of interest and duty, does not assure the imputation of protection. Were it so, a great many grievous wrongs to the reputation of individuals would be privileged against redress simply because of a tenuous, remote or contrived connection between the defamatory imputation and the context. The introduction into a privileged communication of extraneous defamatory imputations will not necessarily cloak them with the privilege. The problem remains one of drawing a line between the protected and the unprotected.
[193] Various judicial formulae have been propounded to mark out the boundaries of the protection given by the relevant privilege. In Bellino v Australian Broadcasting Corporation , the joint reasons suggested that the test was whether "those defamatory imputations … are relevant to the privileged occasion". In that case Brennan CJ was, if anything, more stringent. He did not consider that it was sufficient to decide whether the impugned imputations were "unconnected with and irrelevant to the main statement", as Lord Dunedin had proposed in Adam v Ward [1917] AC 309 . In Brennan CJ's view, it was necessary, in order to attract the protection, that "the publication of the defamatory matter makes a contribution to the discussion of the subject of public interest". A still further criterion of connection, apparently derived from Canadian formulations, was that applied by Sheller JA and Hodgson JA in the Court of Appeal. This asked whether the defamatory imputations were sufficiently "germane and reasonably appropriate" to the publication on the matter of public interest that otherwise attracted the privilege.
[194] All of these formulae are attempts to define the boundaries of a discussion that is truly within the scope of the matter of public interest, so as to exclude the introduction of extraneous, irrelevant or marginal and gratuitous imputations that unacceptably do harm to the reputation and honour of an individual. Scientific precision is impossible by the use of such formulae. In every case, a judgment is evoked. In some instances the titillating character of an irrelevant defamatory imputation in an otherwise justifiable context will be plain. But in other cases, the issue will be more debatable, as Callinan J has correctly recognised."
The authorities connecting the occasion with the imputations were reviewed by McColl JA in Lindholdt v Hyer [2008] NSWCA 264 at paragraphs [125] - [135]. At [167] her Honour said: " [167] Each imputation, in my view, constituted an attack on the respondent's character. None was germane and reasonably appropriate to the occasion of qualified privilege of discussion of matters affecting the taxi industry generally. They attacked the respondent's personal characteristics as manager of Premier Cabs. In my view communication of those imputations did not fulfil any reciprocal duties and interests of the publishers and recipients in communicating information about the taxi industry. They were, to adopt Kirby J's phraseology ( Bashford at [194]) "gratuitous imputations that unacceptably … harm[ed] the [respondent's] reputation and honour".
While the Court of Appeal has reconsidered the law of qualified privilege since this decision was handed down, these statements clearly and succinctly state the law relating to the connection necessary for the defence.
The addressee Tutor Saliba of the first matter complained of had no relevant interest in the express allegation of fraud by the defendants against the second plaintiff, on the basis that there were pictures on the second plaintiff's website of project sites where the second defendant's products were depicted and not sites where products presently sold by the second plaintiff were used. This has no bearing or connection with the products and services supplied by the second plaintiff to the addressee of the first matter complained of.
An accusation that the second plaintiff knowingly and blatantly overstated the experience of its consultants on its website did not justify communicating this allegation to the addressee of the first matter complained of whilst enjoying a prima facie protection of a privileged communication concerning the intellectual property rights of the second defendant in turn concerning the goods supplied by the second plaintiff to Tutor Saliba.
Further, the highly colourful and strong language (e.g. "straight out fraud" in bold) adopted by the defendants was excessive to any occasion of privilege (or as it is sometimes put, irrelevant to the occasion or an abuse of the occasion). This is a separate issue from malice. This notion was extensively reviewed by the New South Wales Court of Appeal in Skalkos v Assaf [2002] NSWCA 14.
In Skalkos, the New South Wales Court of Appeal dismissed an appeal from a judgment of Carruthers AJ. In doing so Mason P noted: " [28] It is well established that an occasion of privilege can be abused by the publication of additional matter that is "extraneous" (Adam at 318 per Lord Finlay LC) or "beyond what was germane and reasonably appropriate to the occasion" (ibid at 321 per Earl Loreburn). The defendants' bona fide belief as to relevance will not be sufficient (ibid at 334 per Lord Atkinson). In Bellino , Dawson, McHugh and Gummow JJ said at 228: It is true that, at common law, privilege only attaches to those defamatory imputations that are relevant to the privileged occasion. Where a potentially privileged communication consists partly of matters relevant to the privilege and partly of matters that are not relevant, qualified privilege only attaches to that part which is relevant to the occasion. Moreover, the inclusion of the irrelevant part in the communication affords evidence of malice and can destroy the privilege attaching the relevant part.
[29] The passage quoted from Bellino demonstrates that there is overlap between matters going to the question of malice and matters going to the question whether the publication complained of was within the protection of a claimed occasion of privilege."
Further at [40] Mason P said: " [40] In the seminal case of Adam v Ward , characterisation of matter as extraneous and irrelevant was seen as directly pertinent to the issue whether the communication in question was made upon the privileged occasion (see at 318, 327, 320-321, 328-329, 339-340, 348 and see generally Gatley on Libel and Slander 9th ed para14.59). In his summation of the law in this area in Mowlds v Fergusson (1939) 40 SR(NSW) 311 Jordan CJ said (at 318): If anyone complains that the communication defames him, the burden of proof lies on the complainant to establish either that the defamatory matter was irrelevant to the purposes of the occasion or else that it was made in order to serve some other purpose than the purposes warranted by the occasion.
[41] See also McLean v David Syme & Co Ltd (1970) 72 SR(NSW) 513 at 530 per Mason and Manning JJA, Bellino v Australian Broadcasting Corp (1996) 185 CLR 183 at 200-201 per Gaudron J, Liquor Marketing Group v Sadler [2000] NSWCA 161 at [56].
[42] The grossness of the falsity of the publication is pertinent to this issue of relevance. The defendants' particulars asserted that "members of the public had an interest in knowing the facts and matters stated" in the letter. This alone makes the factual accuracy of the matters stated relevant to the issue of abuse of the occasion of privilege. And clearly established dishonesty is in turn capable of casting light on this inquiry. To describe an allegation as a "splenetic and false attack" (at [194]) is really just a colourful way of emphasising the extraneity of the particular defamatory imputations to the professed context of the letter. The jury's rejection of malice did not pre-empt the judge from concluding, in the particular case, that the privileged occasion was abused (see Guise v Kouvelis (1947) 74 CLR 102 at 117, Bellino at 200-201).
[43] Carruthers AJ did not fall into the error of seeing every excessive statement as an abuse of the occasion of privilege (cf Adam at 328) nor did he regard the "splenetic" vigour of the imputations as sufficient in itself to forfeit the privilege. The statements at the commencement of para[194] were introductory yet pertinent to the conclusions stated in traditional terms at the conclusion of that paragraph of the judgment. Likewise para[202]. His Honour also recognised expressly that the untruthfulness of the imputations was not determinative (see at [184]) and that error in itself did not destroy the occasion of privilege (see at [202])."
It may be open to the Court to find that an abuse of privilege had occurred (even if no malice was present) because the manner of expression and lack of relevance of the allegations to the occasion of qualified privilege is such as to defeat the privilege at the outset.
The allegation of fraud in relation to the website at line 44 of the first matter complained of and the mocking nature of the statements at line 51 where the first plaintiff is said to have sold women's stockings and before that used cars is irrelevant to any communication to the addressee on the issue of a contract between Tutor Saliba and the second plaintiff in relation to the supply of products and services on the Los Angeles airport project.
This has all been made much clearer by the Court of Appeal's decision in Aktas v Westpac Banking Corporation Ltd [2009] NSWCA 9. McClellan CJ at CL, at [71]-[75] explained the issue as follows: "71 Section 9 of the 1974 Act provided that a plaintiff is required to sue on the imputations arising from the matter which the plaintiff alleged defamed him or her. A controversy, stimulated by the appellants in the present case, has been generated about whether a defendant could successfully defend by pleading that the matter complained of was published on a privileged occasion or was required to plead that the defamatory imputation was published on that occasion. Once the purpose of the defence is understood most people would respond with the question "what is the debate about?" The defence has the purpose of protecting the defendant from liability for damages for publishing a defamatory imputation. Does it really matter whether the protected occasion is described as the occasion on which the imputation is published or the occasion on which a matter was published which gave rise to the defamatory imputation? The issue was considered by McColl JA in Lindholdt v Hyer [2008] NSWCA 264 where her Honour considered the decision of the trial judge in the present case. I shall return to that matter below.
72 Before the occasion on which a defamatory imputation is published will be protected by qualified privilege there must be a sufficient connection between the imputation and the privileged occasion. Accordingly, as Gummow J pointed out in Bashford (at [135]) it is first necessary to identify the particular imputation before determining whether it was published on a privileged occasion. Only then can the issue of relevance be resolved.
73 Although the decided cases reflect decisions made after consideration of these two issues, the appropriate sequence in the reasoning process has not always been followed. In most cases this does not matter, although this is not true of all cases. Problems may arise when a publication makes a number of statements which give rise to a variety of imputations, some of which may be defamatory and others not. To speak of the publication being an occasion of qualified privilege without further refinement may be misleading. It is only matters in respect of which the publication is occasioned by the necessary reciprocity of interest or duty which the law describes as being published on an occasion of qualified privilege.
74 In Bashford , Gummow J expressed the following caution (at [135]): "It is clear that both the primary judge and the Court of Appeal proceeded on the assumption that it was first necessary to establish that the principal part of the article was published on an occasion of qualified privilege and only then to consider whether the defamatory imputation, although not contained within the principal part of the article, nevertheless, was relevant to it. In my view, such an approach requires caution. The defence of qualified privilege is a plea in confession and, as such, is predicated upon the existence of a defamatory imputation to which the privilege attaches. To speak of qualified privilege attaching to a non-defamatory statement is to ignore this fundamental characteristic. It follows that questions of relevance, in the sense in which that term was used by the judges below, will ordinarily only arise where two or more defamatory imputations are published on a single privileged occasion. In such circumstances, it will be necessary to determine whether each imputation falls within the umbrella of the applicable privilege or whether one of the imputations is not relevant and, therefore, not covered by the defence. In the present case, only one defamatory imputation has been found to have been conveyed. It is therefore necessary to consider whether that imputation was made on an occasion giving rise to a defence of qualified privilege arising out of a reciprocal duty or interest" (footnotes omitted).
75 The issue can be readily understood by a variant of the present case. If a bank returned a cheque to the payee having correctly determined that there were insufficient funds with two endorsements, one being "Refer to Drawer" and the other, the "drawer is a thief", the imputations arising from the publication of the first statement, made necessary by the bank's decision to refuse payment, will be an occasion of qualified privilege. The publication of the second will not, there being no interest or duty on the part of the bank to publish that the drawer is a thief, with whatever defamatory imputation may be found to arise from the publication of that statement. An occasion on which matter which gives rise to defamatory imputations is published may not be used for some purpose or motive foreign to the duty or interest that protects the making of the statement: Roberts v Bass (at [62])."
Applying the practical example given by McClellan CJ at CL to the present case, there was no interest for the defendants in receiving information that the plaintiffs were guilty of "straight out fraud" by leaving photographs on their website of Atlantis products that they had installed after Atlantis ceased using the company as a distributor. Nor is there an interest in receiving irrelevant attacks on the length of experience of the first plaintiff.
The second matter is a communication by the defendants to EcoRain Systems Inc a corporation which has a connection with Mr Larach who is a shareholder of that company, and Stormwater as EcoRain is a manufacturer of products distributed by Stormwater.
Identical imputations are pleaded as the wording of lines 38 to 59 is identical to the first matter complained of.
On its face, the communication to EcoRain Systems enjoys the protection of qualified privilege in respect of allegations that the product being offered for sale by Stormwater infringed Atlantis' US patent 549 and a US trade mark for EcoRain. However, the publication of the material giving rise to the imputations had no connection with those allegations and were wholly irrelevant to the occasion of qualified privilege if found to exist in respect of the communication regarding intellectual property rights.
An interesting question in relation to duty and interest may arise where a party who does have a duty or interest (for example, the solicitor representing the parties has a duty to write letters on behalf of his client, and the opposing party's solicitor has an interest in receiving them) where one of the parties takes it upon himself to write to another gratuitously. At the time the second matter complained of was written, the parties' lawyers were exchanging letters. Why then was it necessary for the defendants to write to EcoRain direct? If it was to induce them to become a party to the suit, or to warn them that they might be involved, that might be an occasion protected by a qualified privilege: Shipley v Todhunter (1836) 173 ER 298 at 302.
Letters about litigation, or to potential witnesses, are usually protected if that is the purpose of the letter. However, the Court will carefully analyse whether such publications are in fact for that purpose. In Porter v Robinson Sheppard Shapiro (2004) 71 OR (3d) 547, a law firm which maintained an Internet website for the purpose of informing clients and potential clients on various aspects of the law of insurance, made some strong comments about an award of punitive damages against an insurance company. The finding of qualified privilege was set aside on appeal on the basis of insufficient evidence.
While a letter simply warning of the potential for litigation may not exceed the privilege, the inclusion of a great deal of extraneous matter has resulted in the defendants exceeding the limit of the duty or interest created by the occasion. A person must be careful to go no further than his or her duties or interests require. The communication must be reasonably germane and appropriate to the occasion (see Skalkos v Assaf at [29]). While a number of courts have treated this question as an issue of malice (see Skalkos v Assaf at [29]) an equal number of courts have held that qualified privilege may not attach if the purpose for which the privileged occasion is created is exceeded, either by a communication to a person who is not entitled to receive the information or because the communication to an appropriate person contains information beyond that which he or she is entitled to see or hear or refers to subject matter that is inappropriate to the occasion: Adam v Ward (at 321, referred to in Bashford at [36]). The second matter complained of is an example of the second kind of publication. The purpose of the publication was not to impart information but to strike fear into the hearts of the recipients. Accordingly, it is not an occasion protected by qualified privilege.
The third matter complained of is a communication by Atlantis to Denver Plastics which was manufacturing the tanks for use by Stormwater in the LAX airport project.
According to the evidence of Mr Urriola, it would appear that the letter which was sent to Denver Plastics was sent partly as a result of guesswork, in that the defendants were seeking to find what company in the United States manufactured the tanks for use by Stormwater. I note that in earlier correspondence they had sought this information from the plaintiffs' solicitors, but it does not appear to have been provided and it was following the defendants' own enquiries that Denver Plastics was identified as a potential manufacturer. Denver Plastics did manufacture the goods but it is hard to see how they could have any interest in receiving this volunteered information.
The plaintiffs, in written submissions, complain of the gratuitous addition of claims concerning breach of Patent and Trademark Act. It is an interesting question of law whether allegations giving rise to an imputation which the plaintiffs have refrained from pleading can still be relied upon as being information that is excessive to the occasion under privilege. However, as I am satisfied that Denver Plastics, on the evidence, had no interest in receiving this letter in any event, it is not necessary to determine this issue.
Conclusions concerning the occasions of qualified privilege
I am satisfied that none of the matter complained of was published on an occasion protected by qualified privilege. If I have erred in this regard, the question becomes whether that privilege is lost because of malice. I have dealt with this issue below. However, I shall first deal with the defendants' defence of statutory qualified privilege.
The defendants plead the defence of qualified privilege (paragraph 18 of the defence) both at common law and pursuant to s 30 of the Defamation Act 2005 (NSW).
It is not clear why statutory qualified privilege is pleaded when none of the matters complained of were media publications, but matters of very limited extent of publication. The defence under s 30 was clearly based on the old s 22 of the Defamation Act 1974, but with a number of further circumstances under s 30(3) the Court may take into account in determining whether the conduct of a defendant in publishing matter about a person is reasonable in the circumstances.
Section 30(3) contains a checklist for determining whether a publication is reasonable. Although there are no particulars of public interest (s 30(3)(a)) the erection of structures at the Los Angeles Airport is probably sufficient (although this is not pleaded) to amount to a matter of public interest. Similarly, the management of Los Angeles Airport is arguably a matter relating to the performance of public functions or activities of the recipient of the letter. There is no doubt that the imputations are serious.
The real difficulty under s 30(3) for the defendants is the failure of the matter to distinguish between suspicions, allegations and proven facts, in circumstances where there was no interest in the matter being published expeditiously. In fact, the defendants had failed for some time to do anything about the plaintiffs' conduct in keeping photographs on the website.
The sources of the information and the integrity of those sources is similarly open to question and this is a classic example of a publication containing only one side of the story. There is no suggestion of there being any attempt, reasonable or otherwise, to obtain and publish a response or otherwise to verify the information.
In addition, there are a number of false statements in the first matter complained of, which I summarise as follows: (a) The matter states that Atlantis is the applicant for EcoRain and that there is no other listing for EcoRain, which would make a recipient think that it was only a matter of time until Atlantis became the registered trade mark holder. In fact there was a dispute between the parties as to who owned the trade mark and the defendants did not admit that they were aware that the plaintiffs were using the name EcoRain prior to the application for a registered trade mark in the United States.
(b) The statement that Atlantis products were specified to the Los Angeles Airport Project was incorrect. The plaintiffs had won that contract and were installing their own products.
(c) The "report" on an intellectual property contains no name or signature. Inference to be drawn by the reader is that it is a report prepared by a person or company who is an expert. In fact, Mr Paul Taylor, the author of the report, had been struck off the rolls as a patent attorney.
(d) The context of the dispute between the plaintiffs and defendants, namely Mr Larach's role as a former employee, is completely omitted from the letter.
(e) The reference to the photographs on the website omits that these photographs had legitimately been there prior to termination of the contractual relationship between the plaintiffs and defendants and that after objection the photographs had been removed.
(f) The statements about the lack of experience of Stormwater's consultants were untrue to the knowledge of the defendants.
An explanation for this letter was offered in submissions. Counsel for the defendant reminded me that at interrogatory (g) on page 14 of the Urriola interrogatories sworn 18 April 2008, Mr Urriola stated that he was worried that there could be a collapse of tanks at LAX airport because of the lack of experience of the plaintiffs in designing projects. Yet nothing was stated in the first matter complained of concerning any possible anxiety about safety issues. If this had been a realistic concern then this would be a genuine matter of concern to the contractors at Los Angeles airport that there could be a real safety issue. However, nothing was said at all about safety.
In addition, I have made findings in relation to malice which are relevant pursuant to s 30(4).
The statutory defence fails for all of these reasons in relation to the first publication.
The statutory defence fails for the same reasons in relation to the second publication, which gives rise to the same imputations and is, substantially similar in style and content.
Matters relevant to reasonable conduct of the defendants include: (a) Imputations of underhanded and devious conduct in business are serious; careful steps should be taken to statements prior to making them facts which are stated in the third matter complained of which are either known to be false or could have been checked or verified by the publication. This was not done and a number of the statements of fact made are false. For example, it was asserted Stormwater was selling a product which is 'substantially identical' to the patented Atlantis system. The defendants failed to inform the addressee that no proceedings for infringement had been commenced against the plaintiffs.
(b) The statement that the plaintiffs "blatantly" copied the website conveys the impression that the plaintiffs simply plagiarised the content of a website and pretended that the information related to the business of the plaintiffs. This is a misleading impression when the defendants assisted the plaintiffs by providing photographs of projects whilst Stormwater was a distributor of Atlantis. To accuse them of "blatantly" copying their website does not reflect the true chronology of events.
(c) "Incidentally we are the proprietor of the trademark EcoRain in the USA" (line 26). This along with the statement at line 34 "our trademark EcoRain" is known by the defendants to be false. Statements here gives the impression that Atlantis is the owner of a registered trade mark for EcoRain in the USA. Neither Atlantis nor Rebirth Pty Ltd was ever the owner of a registered trade mark for EcoRain and this was a fact known to the defendants.
Accordingly, the defence of qualified privilege pursuant to s 30 fails for each of the publications.
If the publications were made on occasions protected by qualified privilege at common law, or were reasonable pursuant to s 30, is the privileged occasion lost because of malice?
The particulars of malice in the Reply filed on 9 November 2007 provide particulars of an improper motive in making each of the publications constituted by the matters complained of. The improper motive was to harm a trade rival of the defendants and to effectively prevent them from competing by defaming the plaintiffs to their trade clients and commercial suppliers.
The plaintiffs submit that the defendants knew that many of the allegations in the matters complained of were false or alternatively that the defendants were so reckless as to constitute wilful blindness which the law treats as equivalent to knowledge of falsity (Roberts v Bass (2002) 212 CLR 1 at [84]). Further, the plaintiffs rely on the manner of publication including the excessive language in each of the matters complained of.
In Lindholdt v Hyer [2008] NSWCA 264, McColl JA brought together the leading authorities on malice at [136]-[144] and the following propositions and principles are relevant to this case: (a) If the plaintiffs establish that the defendants had ill will towards the plaintiffs, knowledge of falsity of defamatory matter, recklessness, lack of belief in the defamatory statements, bias, prejudice or any other motive and duty or interest making the publication, then this provides a premise for inferring that the defendants were actuated by an improper motive in making the publication ( Roberts v Bass at [76]);
(b) Proof that the defendants knew that a defamatory statement made on occasion of qualified privilege was untrue is conclusive evidence that the publication was actuated by an improper motive ( Roberts v Bass ibid). Even if the defendants believed that the defamatory statements were true, malice will be established by proof that the publications were actuated by motive foreign to the privileged occasion. That is because qualified privilege is and can only be destroyed by the existence of an improper motive that actuates the publication ( Roberts , ibid);
(c) Recklessness will only destroy qualified privilege by itself if it amounts to wilful blindness. In less extreme cases, recklessness in combination with other factors may provide cogent evidence that the defendant was acting for an improper purpose especially where the recklessness is associated with unreasoning prejudice ( Roberts v Bass at [84] and Lindholdt at 148 [141];
(d) Extravagant language can be evidence of intention to injure the plaintiff ( Lindholdt at [144]);
(e) Often the best and only evidence of the publisher's state of mind towards the subject of the publication will be found in the publication itself ( Lindholdt at [177]);
(f) Regard should be had to all relevant material to discern the publisher's state of mind prior to and at the date of publication of the matters complained of ( Lindholdt at [180]);
(g) Material published by the defendant subsequent to the publication of the defamatory material may provide evidence of improper motive at the time of publication ( Guise v Kouvelis (1946) SR (NSW) 419 at 422-3 and Tobin & Sexton , Defamation Law and Practice , at [18,040].
It is the plaintiffs' case that all three of the matters complained of were actuated by malice on the part of the defendants and the defences of statutory and common law qualified privilege should not apply. Further, the defences of comment should not apply for reasons provided in submissions below on comment as well as the relevant aspects of evidence of malice, which negate the possibility of any honest opinion being expressed on the part of the defendants.
The evidence demonstrates the real motive on the part of the defendants in publishing the matters complained of, which was to cause maximum damage to the business of the plaintiffs and to prevent them from carrying on their business by seeking out the plaintiffs' customers and suppliers and publishing numerous defamatory allegations, with the hope and intention of persuading those parties to no longer do business with the plaintiffs. The following matters are relied upon below:
At T-247.24 in examination in chief Mr Urriola said: "Q. We've heard some evidence about the name EcoRain? A. Yes.
Q. Did you take any steps in relation to that name on a legal basis? A. Yes.
Q. What was that? A. We did a search in computer in United States and we found out the name was not registered, was free. We pursue to have the name.
Q. Why did you look for the name EcoRain? A. Because it was in the line of our product. We have product EcoPaver, EcoSoils and also these rain tanks.
Q. Did you know about the plaintiffs using that name? A. Who?
Q. Did you know that Mr Larach was using that name? A. Yes.
Q. When did you know that? A. Well, we found out in the Internet he was using this name.
Q. When was that? A. About soon after - soon after we got the distribution in California.
Q. So before you applied for the name EcoRain, you knew that Mr Larach was using it, is that right? A. Yes.
Mr Urriola had seen the hard copy of the web site as at 20 April (WB-78) which was before the applications for trade marks in Australia (3 May 2006 - PB-110) and the USA (30 April 2006 - PB-149 and DB-68). The advice of Mr Taylor dated 1 May 2006 (PB-98) makes this clear in the first two paragraphs.
The admission was clarified further in cross-examination at T-276.25: "Q. You admitted in evidence, did you not, that when you made applications for trade marks for EcoRain in both Australia and in America, you were aware that Stormwater Solutions were commercially using that name A. Yes.
Q. Now I repeat my second question to you. Therefore, your application for a trade mark was dishonest? A. That's your judgment.
Q. You only made the application to stop Stormwater Solutions business in Australia and in America using the name EcoRain, didn't you? A. Correct."
All three matters complained of make great emphasis that Atlantis is either the only applicant for this name in the USA or is the actual owner of the trade mark. This was known to be false by Mr Urriola and stated in the letter for the express purpose of stopping Stormwater from using the name and therefore preventing it from doing business in both countries. All three publications were therefore actuated by this improper purpose and on this evidence alone, malice is made out for all three publications.
There are however further false statements concerning the trade mark EcoRain evidencing malice: (a) The letter Atlantis sent to Hodgkinson McInnes Pappas dated 22 September 2006 (PB-120) claimed the application was an extension of other similar names such as EcoSoils and EcoPaver. These were made years earlier. This was a subterfuge by Atlantis to try and substantiate the legitimacy of the application.
(b) Mr Urriola's statement that: "We are well acquainted with Mr Larach, being our ex employee and as he is well versed in the art of bluffing, being a used car salesman, we, without any evidence to the contrary believe that Oscar Larach is not the first user of the trade mark EcoRain in Australia".
(c) The letter of 15 November 2006 Atlantis to Trojan (PB-123): "On visiting the web site of Stormwater Solutions after our lodgement for our trade mark EcoRain we noted that Stormwater Solutions were associated with EcoRain…."
(d) The same letter of 15 November 2006 on page PB-124, then warns Trojan that his client may have backdated documents to claim prior use. Further down it accuses the plaintiffs of 'simply lying as usual, which seems to fit within their modus operandi'. This is the language of malice.
(e) The first matter complained of gives the clear impression that Atlantis will shortly be the registered trade mark owner of EcoRain, when it knows that there were others interested in the name (apart from the fact of knowledge of prior use by Stormwater) and threatens to have EcoRain modules seized at the docks. This comes very close to threatening criminal proceedings. No such step was ever taken or even contemplated.
(f) The second matter complained of repeats the false statements about the defendants having the only applicant for the trade mark (PB-11 at lines 10 and 64).
(g) The third matter complained of states at line 34 that Atlantis owns the trade mark EcoRain that was false and clearly intended to prevent Denver plastics from doing business with Stormwater.
This is the letter at DB-65. According to the evidence of Mr Urriola at T-243.9 and Mr Heng at T-217.20: (a) The letter tendered was undated and unsigned and Mr Urriola could not remember the date he received it (T-355.35). He said he received it in early 2006.
(b) The original, which was in Mr Urriola's wife's desk, was lost and a copy only came to light 'last week' which was given to his lawyer. Mr Urriola's wife was also offered as the explanation for his reluctance to commence proceedings for infringement of intellectual property rights. I find both these claims unpersuasive.
(c) Mr Heng said he received a telephone call from Mr Larach in mid-2005 or September 2005 (which predates the dispute), not December 2005. He told him he would not copy the Atlantis products for him without permission.
Material inconsistencies arise between these versions of events. The plaintiffs helpfully list these as follows: (a) Mr Heng said twice that his version of the letter was signed (T-220.25 and T-220.45). DB-65 is unsigned and Mr Urriola said at T-363.1 that he sent a copy back to Mr Heng so he could give evidence about it. How could it be the same document?
(b) Mr Heng said he did not date the letter because there was a date in the body of the letter (T-220.11). However, the date in the letter was several months before (or even the previous year). Why not date such an important letter?
(c) Mr Heng said he received about $800,000 from Atlantis last year, which the plaintiffs submit provides a motive for Mr Heng to do the bidding of Atlantis.
(d) At T-223.5, Mr Heng said he sent the letter by courier to Mr Urriola. Following a notice to produce, the defendants failed to produce any company record of the receipt of this letter including courier receipts or log records. At T-332.16 Mr Urriola confirmed that the normal practice on incoming mail was to place a receipt stamp on a letter, yet there was no receipt stamp on the letter.
(e) The answers to interrogatories by Mr Urriola at PB-170 gave careful details of matters which Mr Urriola took into account prior to publication. This included allegations that Mr Larach evaded his creditors to the tune of $250,000, that Mr Larach had asked the Chilean manufacturers of Atlantis products to make a product for him, but they refused, calling him a crook, and other matters never raised at the trial. There is no mention of the allegation the defendant did raise at the trial. In early 2006 this letter would have been top of the list of matters for Mr Urriola to raise in all his correspondence, including Doteasy, Tutor Saliba, EcoRain and Deaver Plastics. Mr Urriola said (T-361) he did not mention it as he had lost the document at that time. When pressed further about other allegations made without documents, Mr Urriola said he asked Mr Heng for a copy in April when he swore the interrogatories, but he did not have one.
As this list shows, this is not a case where evidence of prior hostility and ill will are in short supply.
The plaintiffs' written submissions also draw my attention to the following: (a) The statements in the matters complained of that the Stormwater product was a 'copycat' or identical to the Atlantis product, when Atlantis was perfectly aware of the nature of the dispute between the parties, that Stormwater maintained at all times that there was no infringement of patent 549 (Mr Urriola having seen the Trojan memo of 5 June 2006 and Mr Taylor having advised Mr Larach at the outset).
(b) The manner in which the offending photographs on the second plaintiff's website was described to Tutor Saliba and Denver Plastics was such to infer that the plaintiffs had simply stolen pictures from the defendants' website with no authority, with the express intention of deceiving potential clients that all products used in those projects were those exclusively of Stormwater. In fact, photographs and information had been supplied to Stormwater and used with the consent of Atlantis in the period up to 31 March 2006 when Stormwater was the distributor of Atlantis products. Thereafter, correspondence ensued and images were removed where Stormwater had no connection with such projects.
(c) The language used by the defendants, labelling Mr Larach as incompetent by virtue of previous alleged jobs selling women's stockings and used cars and seeking to ridicule and mock the second plaintiff to influence the addressees of the matters complained of against the plaintiffs.
(d) The letter of 16 September 2008 Atlantis to Hanes (PB-153) which sought to mislead Hanes (a distributor of Stormwater/EcoRain) into thinking that the proceedings were brought by Atlantis for infringement of patent in Australia. The letter was an abuse of the Harman ( Harman v Home Department State Secretary; sub nom Home Office v Harman (ALLER) [1983] 1 AC 280) undertaking to keep confidential information obtained from other parties under the compulsory processes of the court. Mr Urriola tried to distance himself from the letter at T-355.10, but admitted that he saw the letter on the computer after it was sent and reprimanded Mr Kovacic, but did nothing to clarify the letter by sending anything further to Hanes.
The above matters, both separately and in combination, amount to strong evidence of malice, arising from the prior hostility and ill will Mr Urriola felt towards Mr Larach, particularly after he won the lucrative Los Angeles Airport contract. That malice can be seen in each of the publications. Accordingly, if I have erred in holding that each of the matters complained of was not published on an occasion of qualified privilege, that privilege would be lost by reason of the malice of both Mr Urriola and the corporation for which he is the alter ego.
At paragraph 20 of the amended defence, the defendants plead honest fair comment at common law and honest opinion pursuant to s 31 Defamation Act 2005. The defence now pleaded is only in respect of the third matter complained of. As the person who made the comment is also a party to the litigation, the concerns about whether the maker of the comment expressed by McClellan CJ at CL to which I referred in Rodgers v Nine Network Australia Pty Ltd (No 2) [2008] NSWDC 275 do not apply.
The essential elements for the defendants to establish are: (a) The words in question are an expression of opinion as opposed to a statement of fact; (b) The opinion has been expressed on a matter of public interest; (c) The comment was fair, which requires the opinion to be expressed on a matter of fact (or on privileged material such as the judgment of a court or the proceedings of parliament) and to be expressed honestly.
The defendants expressly plead the words on the opinion they contend amount to fair comment at page 7 of the amended defence, namely "One should be extremely cautious in dealing with the plaintiffs". The opinion is not that the plaintiffs were underhanded and/or dishonest as per the express words of the third matter complained of, but that one should be extremely cautious in dealing with the plaintiffs. On its face, this is a statement of fact, i.e. it is a warning to the addressee of the third matter complained of to be cautious in any dealings with the plaintiffs following on from the statement that the plaintiffs are underhanded and dishonest.
The opinion does not address or convey the defamatory imputations pleaded and is not on its face defamatory.
The plaintiffs' imputations are that each of the plaintiffs had behaved in such an underhanded and devious way that one needed to be extremely cautious in dealing with it. It is the behaviour, which is characterised as underhanded and devious, which gives rise to the defamatory nature and content of the imputation. Saying that one should be extremely cautious in dealing with the plaintiffs is akin to what the Privy Council described in Lloyd v Syme & Co Ltd (1985) 3 NSWLR 728 at 735-6 as "comment in the air".
Further, any other meaning would raise a 'false issue'. In Chakravarti v Advertiser Newspaper Ltd (1998) 193 CLR 519, Brennan CJ and McHugh J said at 528: "A plea of justification, fair comment or qualified privilege in respect of an imputation not pleaded by the plaintiff does not plead a good defence. …. In general it raises a false issue which can only embarrass the fair trial of the actions."
See also Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245 at [83].
Is the comment on a matter of public interest? No particulars are provided in the amended defence or defendants' Outline of Submissions and the third matter complained of does not identify any topic which could possibly be of public interest. It appears to be a private dispute as to the ownership of intellectual property rights. For that reason alone the common law defence would fail.
No facts are set out in the amended defence. On 10 December 2007, the solicitors for the defendants responded that "the defendants rely upon all of the contents in annexure C as setting out the bases for the opinion". During the trial, the following particulars were provided: "The material upon which the opinion is based is set out in Annexure "C":
Line 20: Oscar Larach has colluded with Stormwater Solutions LLC to copy the Atlantis tank system. This "copycat" system is substantially identical to the patented Atlantis system.
Line 28: We have had US legal advice that the "copycat" system sold by Stormwater Solutions and/or EcoRain Systems Inc, is an infringement of US patent 6,648,549 and that production of the component plates would fall under the definition of 35U.S.C. 271(c) for contributory infringement as the "copycat" plates only use is to be assembled to create a tank which infringes US patent 6,648,549."
The plaintiffs, in written submissions, note that the facts upon which the comment is stated to be based appear to be as follows: (a) The plaintiffs have produced a product which is substantially identical to the patented Atlantis product; (b) The defendants received advice that the copy infringed patent 549; (c) Denver Plastics as manufacturer of the copycat system is guilty of infringement also.
However this ignores other facts stated in this letter namely: (a) Atlantis is the proprietor of the trade mark EcoRain in the USA and any manufacturer of the EcoRain system would also be guilty of trade mark infringement; (b) Stormwater blatantly copied the website of Atlantis.
I agree with the plaintiffs' submission that the defendants cannot "cherry pick" facts from the letter, which they choose to support a comment and ignore other facts in the same letter. They have failed to prove all of the facts upon which the comment is based to be true. In Peter Walker & Son v Hodgson [1909] 1 KB 239 at 256, Kennedy LJ cited Collins MR in Thomas v Bradbury [1906] 2 KB 627 at 638: "Collins MR referring to the defence of fair comment, whether called privilege or by any other name, being limited to this extent, namely it does not extend to cover misstatements of fact however bona fide"
Also at 257: "comment cannot be fair which is built upon facts which are not truly stated."
Under common law, all stated facts must be true otherwise the defence fails. The defence at common law therefore must fail.
The defence pleads the whole of s 31 without specifying which individual subsections apply, but it is presumed that the opinion included is the expression of opinion of each defendant as opposed to employee or agent or commentator. One difference with the common law defence is that the material is not substantially true may still be proper material if it was published under qualified privilege. The plaintiffs' submissions on qualified privilege and malice are therefore relevant in the event that the facts from which the opinion is based cannot be proved true.
Under s 31(6) the opinion may still be defensible if it is stated to be based to a certain extent on proper material.
Is s 31(6) more beneficial than the common law defence? Is the defence still available even if some of the facts within the proper material turn out not to be true? This is an issue I considered in Breen v Nationwide News Pty Ltd [2007] NSWDC 192. The answer appears to be that there is a statutory reasonableness test where the Court must decide objectively, whether the opinion might reasonably be based on such of the facts which can be proved true by the defendant. This reasonableness test may exclude prejudiced opinion, for example. The test where not all facts are true becomes: could the opinion have reasonably been based on those facts which were true?
The section is similar to s 30(3)(b) of the 1974 Act. In Sims v Wran [1984] 1 NSWLR 317 at 325, Hunt J said: "The introduction of the concept of reasonableness in lieu of that of honesty as the test to determine whether a particular statement is a comment places a far greater burden upon the defendant in establishing his defence. That greater burden was no doubt intended by the legislature to offset the advantage which the statutory variant gives to the defendant by permitting the continued availability of the defence of comment notwithstanding the defendant's failure to establish the truth or the existence of the whole of the material upon which his comment was based."
This was confirmed by the Court of Appeal in John Fairfax Publications Pty Limited v O'Shane [2005] NSWCA 164 at [64].
Clearly this exercise depends upon what facts are found to be true and what facts are found by the Court not to be true. However, there is an onerous burden upon defendants to persuade the Court that an opinion might reasonably be based on such of the material that is proper material.
There are no submissions as to why this opinion might reasonably be based on such of the facts which can be proved true by the defendants. In fact those limited facts particularised, are not sufficient to reasonably ground such an opinion in light of the facts which cannot be proved true by the defendants.
For all these reasons the defence of statutory honest opinion must also fail.
The defence of triviality was raised in the submissions on 26 February 2009. The defendants had previously erroneously pleaded these matters as particulars of mitigation (defendants' submissions, paragraph 25).
The defendants draw my attention to the statement by Hunt J in Traztand Pty Ltd v GIO of NSW (1984) 2 NSWLR 598 (at 599-600) that proceedings for defamation based solely on a publication to a company about its director would fail because the defence of unlikelihood of harm would succeed, a statement cited with approval by Giles JA in State Bank of NSW Ltd v Currabubula Holdings Pty Ltd (2001) 51 NSWLR 400 at [114]. Hunt J rejected an argument that such a publication did not amount to publication at all, and his Honour's comments concerning the defence of triviality are obiter.
The defendants' submissions (paragraphs 5-7) briefly note that the requirements for the defence to succeed have "particular resonance" in the publication to EcoRain, the second matter complained of. Mr Larach is a director of both EcoRain and Stormwater. The defendants submit that anyone associated with Stormwater would be able to make a judgment of their own knowledge as to whether there was any substance in the allegations.
The defence of unlikelihood of harm was considered at length in Jones v Sutton (2004) 61 NSWLR 614.
For the defence to be available, the circumstances of the publication must be such that the person defamed was "unlikely to sustain any harm" (s 33 Defamation Act 2005). It remains to be seen whether this test is the same as the test for "not likely to suffer harm" under s 13 Defamation Act 1974. The phrase "unlikely to sustain any harm" sounds very much like "no harm at all" referred to in Skalkos v Assaf and it may be that the issue which the Court of Appeal indicated in Jones v Sutton could be simply resolved (at 620) may be revived by reason of this wording.
Applying the test for "unlikely to cause harm" as set out in Jones v Sutton at 624-625, I note the statements of Beazley JA at 627 to 629, the fact that this was a publication to a company with knowledge of the factual background needs to be seen in the context of the fact that these were serious imputations.
The fact that publication was made to a very limited audience, even where that audience may have known to the contrary (as occurred in Jones v Sutton) is insufficient. Each of the matters complained of was a long and serious letter making allegations which included, in the case of the first and second publications, allegations of fraud. The first and second publications contained a great deal of legal advice, which was designed to impress the reader with the accuracy and truthfulness of the statements involved.
A party needs to point to more than limited publication for this defence to succeed. In the case of the second publication, the fact that EcoRain is a corporation closely related to Stormwater and with a high degree of knowledge of Stormwater's activities, does not mean that its servants or agents or other recipients of this publication within the company would not have been alarmed and concerned to receive a letter making such serious claims. For the defence of triviality to succeed, the circumstances of the publication need to have some quality about them which would warrant the use of the word "trivial". Such a word is unlikely to be applied to a long letter of legal advice accusing a corporation of fraud.
The defence of unlikelihood of harm fails in relation to each of the publications.
All of the defences have failed and I shall not consider the issue of damages.
For the first two matters complained of, damages are only sought by the second plaintiff, Stormwater, which is a corporation. The third matter complained conveys two imputations in the same form but defamatory of both the corporation and an individual. The current ceiling for damages for non-economic loss (as at 1 July 2008) is $280,500.
The first matter to consider is the correct approach to damages where multiple plaintiffs, particularly plaintiffs with overlapping areas of reputation (such as a company and its director) seek damages.
Although it is clear that the s 35 ceiling includes multiple imputations and multiple publications, it is not clear whether s 35 limits damages to the ceiling where multiple plaintiffs are concerned. Technically, each plaintiff has a distinctly separate claim and there are totally separate proceedings, even though consolidated under the same matter number. The plaintiffs submit that the ceiling should apply for each plaintiff separately.
The relationship between general and aggravated damages
Under s 35(2) the ceiling does not apply to an award of aggravated damages. The only claim for aggravated damages is by the first plaintiff as an individual. Aggravated damages are not available to corporations, nor are damages for hurt to feelings: Lewis v Daily Telegraph Ltd [1964] AC 234 at 262; Australian Broadcasting Corporation v Comalco Ltd (1986) 12 FCR 510 at 586; Selecta Homes and Building Co Pty Ltd v Advertiser-News Weekend Publishing Co Pty Ltd (2001) 79 SASR; Bell v Kingsbay Pty Ltd [2001] VSC 388 at [29]. These factors are persuasive, in my opinion, as to the common sense in applying the ceiling separately.
Pursuant to s 36 of the Act the Court is to disregard the malice or other state of mind of the defendant at the time of publication except where it affects the harm sustained by the plaintiff. The plaintiffs in these proceedings claim the defendants' improper purpose was that they wanted to destroy the plaintiffs' business because they were business rivals who had obtained a lucrative contract the defendants had hoped to obtain. If this can be established, it can be taken into account when awarding damages.
Injury to reputation can be claimed regardless of how limited publication may be. In the present case, publication was limited to Tutor Saliba and others concerned with the LAX project (the first matter complained of contains a distribution list (at PB-6) from which it can be inferred that a number of individuals concerned with the LAX project saw this letter). The second publication is to a company of which the first plaintiff is the co-director. The third publication is to a company.
Damage in defamation is presumed: Readers Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 507. The award of damages in a defamation action operates as a vindication of the plaintiff and the consolation for the wrong done to it, which may not incur injury to feelings but does include damage to reputation: Carson v John Fairfax (1993) 178 CLR 44 at 60; Uren v John Fairfax (1956) 117 CLR 118 at 150.
Vindication is a separate entitlement of the plaintiff for the fact of having been defamed. The sum awarded in damages must be sufficient vindication (Rigby v Associated Newspapers (1969) 1 NSWR 729 at 743). In Carson (ibid) the majority judgment quoted Fleming Law of Torts, 8th ed (1992) at p.5: "Vindication looks to the attitude of others to the appellant [i.e. the plaintiff] the sum awarded must be at least the minimum necessary to signal to the public the vindication of the appellant's reputation. The gravity of the libel, the social standing of the parties and the availability of alternative remedies are all relevant to assessing the quantum of damages necessary to vindicate the appellant."
There is no claim for special damages and no direct claim for economic loss. However, a company does not have to prove actual loss. In Mount Cook Group Ltd v Johnstone Motors Ltd [1990] 2 NZLR 488 at 497-8, Tipping J rejected statements to the contrary in D & L Caterers v D'Ajou [1945] KB 354 at 367. In Feo v Pioneer Concrete (Vic) Pty Ltd [1999] 3 VR 417 Winneke P explained that while it was unnecessary to either allege or prove special damage, damages are still assessed for injury to the company's reputation, "having regard to financial and commercial considerations by which a corporation's reputation is ordinarily assessed". In some cases those damages may only be nominal, particularly where "the nature of the defamatory imputation, or the breadth of its publication, has caused significant harm to the trading reputation of the corporation defamed" (at [57]).
In Feo the Court awarded damages of $5,500 for four slanders spoken on the telephone. The award of damages in Australian Broadcasting Corporation v Comalco Ltd (1986) 12 FCR 510 was similarly modest, as Winneke P noted at [57]. In Australian Broadcasting Corporation v Comalco Ltd, Neaves J was critical of statements by Mahoney JA in Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 to the effect that a company could recover damages without regard to the impact on its trade or business of the libel; the Court of Appeal in Victoria in Kay v Chesser [1999] 3 VR 55 (at 59) noted the rejection of Mahoney JA's views and concurred.
The provisions of the Act requiring there to be a rational relationship between the damages awarded and the libel may well resolve any conflict in these differing views. I shall now consider the evidence relating to the reputation of each of the plaintiffs.
Mr Larach described in evidence at T-28 the history of Stormwater in the USA which, amongst other things, was a distributor of Atlantis products in California from 2002. When Mr Larach left in 2004, he later joined Stormwater which continued to conduct the same business until the end of March 2006 when its relationship with Atlantis ended (after the three month extension period). Thereafter, it pursued the same business with the EcoRain product. At T-47.10, Mr Larach described how the LAX contract was won and it is inferred from this substantial contract that Stormwater enjoyed a strong business reputation in the USA.
Furthermore, Stormwater had arranged for Denver Plastics in Nebraska to manufacture all the infiltration tanks for the LAX job. At T-47.45 Mr Larach described how the need to arose to find a US manufacturer and later successfully negotiated a contract with Denver Plastics.
Furthermore, Mr Larach also described the fact that all jobs undertaken when an Atlantis distributor were in the name of Stormwater and all parts of those jobs were undertaken by Stormwater. Therefore they clearly enjoyed a strong business reputation at least in California during that period also.
At T-80.41, Mr Osendorf from Hanes in California, gave evidence that as at the date of the first matter complained of, December 2006, Hanes was a distributor of the EcoRain products and he was familiar with Stormwater in California. He said that he considered that Stormwater had a good reputation in the market of infiltration tanks (T-80.46) in California and surrounding states of Nevada, Arizona and Oregon (T-81.5).
Mr Larach's reputation was synonymous with that of Stormwater. He negotiated all business contracts and was the primary contact for EcoRain products (T-81.11). Mr Osendorf said that Mr Larach's reputation in the market place was good and that "I never heard anything in the market place contrary to that".
The first matter complained of is defamatory of Stormwater.
As I have set out above, although a company cannot be injured in its feelings, the injury need not be confined to loss of income as the goodwill of a company may be injured, yet it is not necessary to prove special damage (see Gatley (11th ed) [8.16]).
Evidence has been given by Mr Larach of Stormwater's trading activities and the fact that the first matter complained of was fairly and squarely aimed at a substantial client of Stormwater, Its clear intent was to prevent Stormwater from enjoying the benefit of that business contract. This letter and the imputations conveyed by it clearly damaged the business reputation of Stormwater within its own market place in the US.
Mr Larach gave evidence (T-47) of how the LAX contract came about. At T-48.39 Mr Larach described the effect of the letter on Stormwater and the steps which had to be taken to prevent the contract from being terminated. In effect Tutor Saliba were very concerned and a letter of indemnity was eventually negotiated and provided in respect of any proceedings by Atlantis (T-49.45). This was the only way to effectively counter the effect of the libel.
The second matter complained of is defamatory of Stormwater, but to a much more sympathetic recipient, namely the company whose name Atlantis claimed it owned. No evidence was given as to how many persons in the company were recipients. While damage to reputation is presumed, quantum of damages for this letter will be small.
This letter was aimed at the US manufacturer of products to be sold by Stormwater.
The imputations for both plaintiffs in respect of the third matter complained of are very serious in that the conduct alleged is one of underhanded and devious behaviour in business dealings, such that any commercial organisation should be extremely cautious in dealing with the plaintiffs. It is clearly a warning to a business client/associate of Stormwater, not to have anything to do with it because of such conduct. These are serious allegations concerning both plaintiffs, whose reputation in the US market is well known in this field.
The letter lists a number of instances which lead to the conclusion of underhanded and devious behaviour including infringement of the second defendant's trade mark EcoRain, blatantly copying the second defendant's website and infringing the second defendant's patent 549.
Evidence was given by Mr Larach at T-57.45 of the effect of this letter on Denver Plastics and the steps that he had to take to try and rectify the damage caused as a result of the letter. In view of the fact that the letter caused Denver to suspend its business with Stormwater, there was real concern that if this continued then this would put Stormwater out of business as it had overstretched itself as a small company to fulfil the terms of the large contract at LAX and Denver was obviously very concerned at the contents of the Atlantis letter.
In this action Mr Larach is the plaintiff as well as Stormwater. Different heads of damage are available for Mr Larach and I briefly set out those heads of damage below.
The first plaintiff is entitled to damages not only for injury to reputation but also injury and hurt to feelings. In Broome v Cassell [1972] AC 127 at 1073, Lord Helsham said that the concept of damages being at large should be used: "In general to cover all cases where awards of damages may include elements for loss of reputation, injured feelings, and bad or good conduct by the party, or punishment, and where in consequence no precise limit can be set in extent."
The various elements under injury to feelings are referred to at Carson, ibid, at 60. Mr Larach gave evidence of the hurt to his feelings when he was made aware of the letter to Denver Plastics (T-56.44) Also the failure to apologise (whether or not an apology was sought) may be taken into account in awarding damages as contributing to the first plaintiff's hurt feelings and so going to ordinary compensatory damages. The lack of apology continues to this day and the letter from Atlantis dated 13 March 2007 to Bolzan and Dimitri in response to the latter for action (PB-146) illustrates the defendants' highhanded attitude towards this matter. Further the letter dated 20 June 2007 to Denver Plastics (PB-148) repeated the libel notwithstanding that proceedings had commenced against the defendants on 11 April 2007.
The defence pleads a number of factors in mitigation of damages: (a) That the circumstances of the publication of the matters complained of were such that the plaintiffs were not likely to suffer harm - this is not a factor in mitigation of damages but a substantive defence which is able to be pleaded under s 33 and dealt with separately above.
(b) The circumstances of the publication, including the fact that Mr Larach was a former employee of Atlantis and Stormwater was a former distributor of Atlantis' products. No further particulars are provided in the defence or elsewhere. These can have no relevance to the level of damages awarded by the Court. There is no plea of bad reputation and no particulars provided ( Defamation Law and Practice , [21,055]).
(c) The defendants also rely on the proceedings in California. According to the correspondence, when asked for particulars of facts and matters regarding mitigation, the defendants responded on 19 December 2007 by repeating the pleading without providing any new facts or matters.
(d) The defendants also rely on the truth of any imputations and/or contextual imputations which fall short of satisfying the defences of justification and contextual truth. I did not find that any of the imputations was true, so this particular of mitigation does not need to be considered.
Aggravated compensatory damages are claimed by Mr Larach for the following: (a) failure to apologise;
(b) the letter dated 20 June 2007 to Denver Plastics (PB-148) repeated the libel, notwithstanding that proceedings had commenced against the defendants on 11 April 2007;
(c) the letter of 16 September 2008 (PB-153) to Hanes, which was lacking in bona fides or improper or unjustifiable ( Triggell v Pheeney (1951) 82 CLR 497). At T-81.35, Mr Osendorf said that Hanes was forced to suspend sales of the products until an investigation took place as to the validity of the claims set out in the letter of 16 September;
(d) the maintaining of a truth defence, including contextual truth, contributes to aggravation of damage by the accusations made and found not to be true. This includes cross-examination of Mr Larach accusing him of devious and underhanded conduct;
(e) the failure by the defendants to disclose the true facts in the third matter complained of, i.e. that there was a real dispute about ownership of the EcoRain trade mark and a real dispute about alleged infringement of patent;
(f) the Heng letter (DB-65) which accused Mr Larach of intellectual property fraud;
(g) the evidence of Mr Taylor who said that Mr Larach had approached him and asked (387.41) how he could get round patent 549. The first plaintiff submits that this clearly inferred a request to assist him to cheat Atlantis. Mr Taylor agreed in cross-examination that Mr Larach had already brought his new product with him so he could not have asked this question (T-395.1) and simply required his professional advice as to whether that product contravened the existing patent;
(h) the allegations in the interrogatories (PB-171) about Mr Larach evading creditors to the tune of $250,000 and being called a "crook" by Chilean manufacturers;
(i) the mocking nature of the references in the first two matters complained of and the interrogatories, to Mr Larach as a seller of women's stockings and used cars in a pejorative and patronising sense;
Section 34 Defamation Act 2005 resembles s 46A Defamation Act 1974, which was the subject of careful analysis by the High Court in Rogers v Nationwide News Pty Limited (2003) 216 CLR 327. Hayne J noted that it was important to identify what features or characteristics of the particular case should be considered and what features or characteristics were relevant to compare with other cases when determining quantum. Any comparison which is drawn must look to the particular plaintiff, and not to what others may have thought of the defamatory words that were published, or what kind of injuries (including physical injuries in the case of personal injury) were sustained (per Hayne J at 354).
Decisions in the Supreme Court, such as Davis v Nationwide News Pty Ltd [2008] NSWSC 693 are of little assistance, because that was a mass media publication about an internationally renowned actress.
In Martin v Bruce (2007) 6 DCLR (NSW) 157, I noted and followed a number of decisions of the New South Wales Court of Appeal concerning small verdicts for publications which are extremely limited.
In the present case, an additional factor is important, and that is that in three cases a claim for damages is made by a company where there is no claim for special damages and no entitlement to damages for hurt to feelings or aggravated damages.
While the imputations published about the first plaintiff in the third publication and the second plaintiff in all three publications were matters of great seriousness, very great weight must be given to the limited extent of the publication of each of the matters complained of. While in relation to the first publication, there is evidence that it was read by a number of persons, and discussed at some length, the second and third publications were read only by a handful of persons.
Using the methodology adopted by the trial judge in Davis, I proposed to award damages as follows:
This publication was the most serious in terms of its impact upon the reputation of the second plaintiff. The evidence of Mr Montgomery made this clear, as did the evidence of Mr Larach. I have had regard to sums awarded by corporations in Feo and Comalco. I award Stormwater the sum of $10,000.
This was a publication to another company, EcoRain. The very limited nature of the publication of the letter is of great significance. I award the sum of $5,000.
Again, in relation to the corporation, damages for this limited publication on the limited heads of damage available should be small and I award the sum of $5,000.
As to Mr Larach, the hurt to feelings he suffered from this letter was considerable. However, the extent of publication was limited. Taking into account the methodology explained by Hayne J in Rogers and adopted by McClellan CJ at CL in Davis, I propose to award him the sum of $20,000. This figure takes into account an entitlement to aggravated compensatory damages in that it is towards the top of the range which should be awarded for a letter of this kind, having regard to the ceiling on damages imposed by the Act. The corporate plaintiff, Stormwater, is of course not entitled to aggravated compensatory damages for any of these publications.
The plaintiffs are entitled to interest on damages and I grant the parties leave to bring in Short Minutes of Order reflecting the agreed mathematical calculation of interest on the damages to be awarded.
The parties asked me not to make an order for costs until after hearing argument. I grant the parties liberty to apply in relation to orders for costs and any applications pursuant to s 40 Defamation Act 2005.
Tutor Saliba Builders 15901 Olden Street Sylmar, CA 91342 USA
Re: Los Angeles Airport project Underground infiltration/storage tanks
Atlantis Corporation Pty Ltd is the proprietor of US Patent no. 6,648,549 and is the applicant for US trade mark application no. 78/873,006 for the trade mark EcoRain; there is no other listing for EcoRain on the computer records of the US Patent and Trade Mark Office.
It is our understanding Atlantis products were specified for this project. However it appears that another company is attempting to replace our Atlantis products with a copied product that even may even have been branded with a copy of our new trade mark. It is our understanding that a Chinese copied products are being offered for sale through Stormwater Solutions LLC or EcoRain System Inc.; these products, we are lead to believe, are being produced in China, from a design copied by Oscar Larach, an ex-Atlantis employee from our products. The copy would fall under the definition of 35U.S.C.271 (c) for contributory infringement.
The above opinion has been confirmed by an independent firm of US attorneys.
Therefore as we must now protect our patented products, we would suggest that you obtain advice from an independent US attorney as to any patent or trade mark infringement problems which might occur, if you use a copy product, rather than an Atlantis product. Please reply within 15 days from receipt of this letter.
A report on the intellectual Property problems is enclosed for your reference.
Yours faithfully, Atlantis Corporation Pty Ltd Humberto Urriola
Web Site Misleading & Deceptive Conduct On the web site of Stormwater Solutions LLC, on 15th May 2006 it states that the products are patented, which on a simple search of the US Patent records clearly showed they weren't. We were forced to draw this and many other misleading and deceptive statement to the attention of Stormwater Solutions LLC. They belatedly remove some of these.
However only two weeks ago we were forced to again write to their attorney pointing out that again the only pictures of project sites are sites where Atlantis products were used and not sites where any products presently sold by Stormwater Solutions LLC have been used. This is straight out fraud!
Additionally to the Home page, it states that "Our consultants have over 25 years of experience over 30 countries worldwide." You would be lead to believe that Stormwater Solutions LLC or their employees have been in the water management business for 25 years, and have sold products in 30 countries. This is false.
This is a blatant misrepresentation. Oscar Larach worked for Atlantis Corporation for 12 years. Prior to that he sold women's stockings and before that used cars.
Manuel Arriagada, a friend of Oscar Larach has only been in the stormwater industry for five years after becoming an Atlantis distributor in California; before that he was a truck driver. Hence the claim of 25 years experience is a gross misrepresentation.
However turning to the patent question, we have compared the small and large plates, which I have been advised are produced in China on behalf of Oscar Larach or EcoRain Systems Inc. and/or sold through Stormwater Solutions LLC.
The small plates are made from plastics and are rectangular and comprise an outer edge wall, having four pins, in the shape of a cross in cross-section, on each edge wall; on the long edge walls the pins are longer than the short edge walls. Additionally the small plate engages with the Atlantis large plate.
The large plate has a similar construction except that it contains holes into which the pins of the small plate engage.
The plates comprise an array of webs, which are thicker in depth (into the plate) than in width (across the plate). The webs have a small reinforcing member running on the middle of both sides thereof. A similar reinforcing member is located on the inner side of the edge wall members.
The webs of the small plate are divided into three types:
The arrays of the large plate are also divided into three types
2.two edge longitudinal portions having "squashed" diagonal webs; and
3.two intermediate portions, on each side of the central portion, having diagonal webs with larger "spacing" than the "squashed" diagonal webs and with two buttressing cylinders in each portion. It is strange that these plates are almost exactly the same size as the Atlantis plates, as if they were produced to substitute for an already prepared project specification in which Atlantis products had been specified.
I have reviewed the Atlantis US Patent no. 6,648,549 in the name of Humberto Urriola. The patent has a priority date of 18th October 1999, and is in force until 18th November 2011.
In order to infringe a claim, the allegedly infringing article must contain all the features that are stated in the claim and any claim to which it is appended.
The patent contains six (6) independent claims with eight (8) claims appended thereto.
All claims relate to "an underground infiltration system" and all of the independent claims relate to either a storage system or piping. Claims 1 & 2 are the broadest claims, with claims 6 & 7 including connection means located at the nodes to connect together adjacent tank modules.
An underground infiltration system comprising a water storage unit
a) formed by a plurality of load bearing box like modules assembled to abut against and be stacked upon adjacent said modules to form a required size storage unit and
b) a water permeable geotextile wrapped around the assembled load bearing box like modules;
c) said modules having external wall panels, forming a void between the external wall panels,
d) said external wall panels having openings therethrough, such that water can flow into and out of the modules through the openings in said external wall panels and such that in use water can flow into and out of the storage unit through the external wall panels;
e) wherein each external wall panel has peripheral edge members, and
f) web members extending between the peripheral edge members; wherein the web members are thinner in their width than their depth;
g) wherein the web members define a plurality of arrays extending between said peripheral edge members, with each member in a respective array being parallel, and
h) the arrays meeting to form a plurality of nodes; and
i) wherein the array of the web members define, therebetween, the openings in the wall panels, providing support for the geotextile and providing structural integrity for the load bearing box like modules.
Features a) to d) and j) are common features found in the prior art, and are found in all infiltration tank modules, including the "small plate". The novel features are features e) and h).
Turning to the Larach tank plates, we note that they have the following features:
f) web members extending between the peripheral edge members, which are thinner in their width than their depth;
g) a plurality of arrays of parallel web members extending between the peripheral edge members, with h) the arrays meeting to form nodes. Therefore the Larach plates have all the features of claim 1 and whilst the plates on their own do not constitute an underground infiltration system per se, their only use is to form such a system and as such the importation, use, sale of the Larach plates would fall under the definition of 35U.S.C.271 (c) for contributory infringement.
Therefore at least claims 1, 2 & 12 are infringed, by the importation, offer for sale, or use of the "Larach plates" or any tank built from them.
In the specification on column 3 lines 2 it is stated that:
"These web members (4) can be curve, actuate (arcuate), sinusoidal, curved or any suitable shape. However preferably they are in the form of a plurality of straight line arrays, which intersect at nodes (5) thereby forming a plurality of triangular openings (6) separated by the thin web members (4)."
Hence it is not necessary that each web member be a single straight line, the web members could be any form and could comprise several deflections such as the form of the SS rune or zigzag.
In the case of blatant infringement the Court can award damages up to three times those assessed, (35 U.S.C. 284).
The above opinion has been confirmed by an independent firm of US attorneys.
Trade Mark It is our belief that Atlantis is the proprietor of the trade mark EcoRain, as shown by our trade mark application US application on. 78/873006; there are no other listings for that mark in the USPTO computer records. Therefore as soon as our trade mark application is registered we will approach the US Port Authorities to seize any goods, particularly those from China, bearing our trade mark.
EcoRain Systems, Inc. 1103 Rivery Blvd, #13 Georgetown, TX 7862 USA
Re: Patent and Trade Mark Infringement Underground infiltration/storage tanks
Atlantis Corporation Pty Ltd is the proprietor of US Patent no. 6,648,549 and is the applicant for US trade mark application no. 78/873,006 for the trade mark EcoRain; there is no other listing for EcoRain on the computer records of the US Patent and Trade Mark Office.
It is our understanding that a Chinese copied product is being offered for sale from your organization; these products, we are lead to believe, are being produced in China, from a design copied by Oscar Larach, an ex-Atlantis employee from our products. The copy would fall under the definition of 35U.S.C. 271 (c) for contributory infringement in respect of the abovementioned patent.
It is strange that these plates are almost exactly the same size as the Atlantis™ D-raintank™ plates, as if they were produced to substitute for an already prepared project specification in which Atlantis products had been specified.
We have reviewed the Atlantis US Patent no. 6,648,549 in the name of Humberto Urriola. It is our belief that your plates have all the features of claim 1 and whilst the plates on their own do not constitute an underground infiltration system per se, their only use is to form such a system and as such the importation, use, sale of your plates would fall under the definition of 35U.S.C. 271 (c) for contributory infringement.
Therefore we believe that at least claims 1, 2 & 12 are infringed, by the importation, offer for sale, or use of "your plates" or any tank built from them.
In the case of blatant infringement the Court can award damages up to three times those assessed, (35 U.S.C. 284).
The above opinion has been confirmed by an independent firm of US attorneys.
Therefore as we must now protect our intellectual property, we would suggest that you obtain advice from an independent US attorney who is not associated with Oscar Larach or Stormwater Solutions LLC as to any patent or trade mark infringement problems which might occur, if you continue to offer for sale the tank module appearing in your brochure.
Please reply to us within 15 days from receipt of this letter.
Yours Faithfully, Atlantis Corporation Pty Ltd Humberto Urriola
Products Water Recycle Solutions.com uses only the best products available in the market to do the job of cleaning, purifying, storage and recycle water. We are distributors of 3P Technik filters from Germany and Master Distributors for Australia, New Zealand and Asian Countries of the most advance Stormwater Management products and systems Eco Systems and proud of using them in our systems, we therefore only endorse and supply proven technologies to create our systems.
We only supply what is needed to complete a system that works and ideally is sustainable and with little maintenance. Please see the following pages of our web site to see some of the technologies that we use.
Water Recycle Solutions uses only the best available products and systems to store water underground, that is why we have now established an exclusive relationship with Eco Systems to supply and install their systems of modular Eco Raintanks, Eco Drainage Cells in all of our jobs.
The Eco System of raintanks is a load bearing modular tank system that can be build to any size to create the desired storage. The system can be used under driveways, parking areas, sportfields or for infiltration, detention or retention of Stormwater or grey water. They are economical and easy to use and install.
Denver Plastics 2355 Aspen Street Wahou, Nebraska 68066 USA.
Injection Moulding "Copycat" Infringement of US Patent no. 6,648,549 In the name of Humberto Urriola
The Atlantis system was invented by Humberto Urriola in 1986; the complete Atlantis system for water management is marketed and sold today by Atlantis Corporation Pty Ltd and Rebirth Pty Ltd. The system comprises modular plastics wall panels which are formed by injection moulding.
It has come to own [sic] attention that a blatant copy of our Atlantis modular infiltration/storage tank system, is being produced in your area. As your company, after our investigations, appears to be a company in your area which the capability of producing the panels needed to build these tanks, we wish to draw the following matters to your attention.
Oscar Larach, an ex-Atlantis salesperson, has colluded with Stormwater Solutions LLC our sacked distributor and their associates EcoRain Systems, Inc. to copy the Atlantis tank system. This "copycat" system, which we understand is being sold under the trade mark EcoRain is substantially identical to the patented Atlantis™ system, which is the subject of the above US patent; a copy of the cover page is enclosed. Additionally they blatantly copied our website, contravening the Uniform Deceptive Trade Practices Act & the US Copyright, Patent and Trademark Act. Incidentally we are the proprietor of the trade mark EcoRain in the USA.
We have had US legal advice that the "copycat" system sold by Stormwater Solutions and/or EcoRain Systems, Inc. is an infringement of US patent 6,648,549, and that production of the components plates would fall under the definition of 35U.S.C. 271 (c) for contributory infringement as the "copycat" plates only use is to be assembled to create a tank which infringes US patent 6,648,549. Thus a manufacturer of the "copycat" plates would be guilty of infringement. Additionally if the product contains our trade mark EcoRain, the manufacturer would also be guilty of trade mark infringement.
Additionally the underhanded & dishonest actions by Stormwater Solutions LLC and Oscar Larach should make one extremely cautious in dealing with them.
If you are dealing with these people, it would be in your best interest to contact us as soon as possible.
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.
Larach
Urriola
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