Autron Electronics Pty Ltd v Boiling Billy Publications Pty Ltd - [2005] VSCA 289

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No.3705 of 2005

AUTRON ELECTRONICS PTY. LTD.
	Appellant
v.
BOILING BILLY PUBLICATIONS PTY. LTD. AND ORS.	Respondents

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JUDGES:	CHERNOV, EAMES and ASHLEY, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 November 2005
DATE OF JUDGMENT:	8 December 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 289

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Defamation – Defamatory imputations – Whether meanings as found were against the evidence and the weight of evidence – Whether a finding of justification in respect of one meaning was against the evidence and the weight of evidence – Whether judge erred in finding that a second meaning was not defamatory of the appellant.

Trade Practices – Misleading and deceptive conduct – Whether judge erred in finding that statements made by respondents did not constitute offending conduct – Whether proof of any damage by conduct of the respondents.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr. J. Ruskin, QC with Mr. C.B. Thomson	Macpherson & Kelley
For the Respondents	Mr. R. McGarvie, SC with Mr. S. Wilmoth	Bruce Caldwell and Associates as agent for Sautelle White Lawyers

CHERNOV, J.A.:

I have had the advantage of reading, in draft, the reasons for judgment of Ashley, J.A. and agree that, for the reasons given by his Honour, the appeal should be dismissed.

EAMES, J.A.:

For the reasons given by Ashley, J.A., I agree that the appeal should be dismissed.

ASHLEY, J.A.:

Statement of the case

This is an appeal from orders made by a County Court judge on 17 December 2004 dismissing claims by the appellant, Autron Electronics Pty Ltd (“Autron” or “the appellant”) against the respondents, Boiling Billy Publications Pty Ltd, Craig Lewis and Cathy Savage, (“Boiling Billy”, “Lewis”, “Savage”, or “the respondents”). The appellant’s unsuccessful claims were for relief in consequence of alleged defamation and for breach of s.52, Trade Practices Act 1974 (Cth.). They arose out of the publication of two newsletters, on the internet and by email, on 19 March 2004.

Circumstances pertinent to publication of the newsletters were as follows:

· The appellant was at material times a manufacturer and seller of a cruise control device – the “Auscruise” cruise control (“the device”) which could be fitted to vehicles after they had been built. As at 2003 the appellant had been in business for more than a decade. The device had been developed by it, and had been on the market since 2001. At pertinent times, sales of that item accounted for about 80% of the appellant’s overall sales income of about $3 M per annum.

· Boiling Billy, incorporated in June 2002, was the corporate alter ego of Lewis and Savage. They were adventurers and writers who had first gone into partnership in 1996; and who were employed by Boiling Billy after its incorporation. Their areas of interest, upon which they wrote books and articles, were mainly camping, four-wheel driving, travelling, and involving themselves in outdoor activities generally.

· Boiling Billy had a website, one page of which was headed, at pertinent times,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] VSCA 289
Decision Date: 8 December 2005

CaseChat Overview and Summary

Autron Electronics Pty Ltd sought to recover damages from Boiling Billy Publications Pty Ltd for defamation and misleading and deceptive conduct under the Trade Practices Act 1974 (Cth). The dispute arose from publications made by the respondents which the appellant considered defamatory and misleading. The case was heard and determined in the Federal Court of Australia. The primary judge found that the statements made by the respondents were not defamatory in respect of the appellant and that the conduct did not constitute misleading or deceptive conduct.

The central legal issues before the court were whether the meanings ascribed to the impugned statements were against the evidence and the weight of the evidence, and if the judge had erred in finding that certain meanings were not defamatory. Additionally, the court had to determine whether the judge was mistaken in finding that the conduct of the respondents did not amount to misleading or deceptive conduct and if there was any requirement for proof of damage resulting from such conduct.

The court held that the meanings ascribed by the primary judge to the impugned statements were not against the evidence and the weight of the evidence. The court also found that the primary judge had not erred in concluding that certain meanings were not defamatory of the appellant. Regarding the misleading and deceptive conduct, the court concluded that the judge's findings were correct, and there was no requirement for proof of any damage as a result of the conduct in question.

The appeal was dismissed, and the orders of the primary judge were affirmed. The court found no grounds for the appellant's contentions and upheld the findings of the primary judge in all respects.

Orders