Bell and Ors v Kingsbay Pty Ltd [2001] VSC 388

9. The second plaintiff, Southern Cross Broadcasting (Australia) Ltd ("Southern Cross"), is a company which, at all relevant times, was the owner of radio station 3AW. Up until July 1996, it owned the radio station 3AK. It sold 3AK to 3AK Fusion Media Pty Ltd.

12. The first plaintiff, Anthony Edward Bell ("Mr Bell"), at all relevant times, was the managing director of Southern Cross and a well-known businessman.

15. The third plaintiff, 3AW Southern Cross Radio Pty Ltd ("3AW"), is a company which, at all relevant times, was the holder of a commercial radio broadcast licence to broadcast to listeners through radio station 3AW.

18. The first defendant, Kingsbay Pty Ltd ("Kingsbay"), is a company which, at all relevant times, was the holder of a commercial radio broadcast licence to broadcast through radio station 3AK.

21. The second defendant, Derryn Hinch ("Mr Hinch"), was, at all relevant times, employed by Kingsbay as a radio presenter on radio station 3AK.

25. On 8 February 2001, Mr Hinch informed the listening public to radio station 3AK, of the actions of Mr Bell and the other plaintiffs to, in effect, unfairly control radio station 3AK at a time when Southern Cross no longer had any interest in 3AK.

28. The words attributed to Mr Hinch and which do not appear to be denied, were -

"Well, it's true. You haven't heard the bull roar yet. I tell you one thing, the barn yard door's now being flung open. For too long I believe 3AW has dominated this town with no opposition, no alternative. And I've only discovered in recent weeks since I came here to 3AK just how ruthless and how manipulative those owners, my former employers, have been in keeping the old 3AK in its place and down in the gutter. How it used financial muscle to get pledges from the old owners not to even compete in the talk format market place. And I bet the Australian broadcasting authorities would love to see some of that correspondence. Tony Bell, I've seen it. But anyway, as of today the bully-boy tactics will not work. Brand new day. Those shackles have been broken. It is a whole new ball game, the bull will roar."

32. On 20 February 2001, the plaintiffs issued the proceeding against the two defendants and complained that the words spoken by Mr Hinch in their normal, natural and ordinary meaning were defamatory of the plaintiffs and each of them. The plaintiffs pleaded five false innuendos. Not only did the plaintiffs claim general damages, but are seeking aggravated and/or exemplary damages, and particulars are given of the facts upon which they rely in paragraph 9 of the statement of claim.

35. Prior to the issue of the proceeding, on 14 February 2001, the plaintiffs' solicitors requested the defendants to apologise, which request was refused.

38. On 16 May 2001, Mr Hinch broadcast through radio station 3AK to the listening public, further words which the first plaintiff, Mr Bell, claims defamed him. The statement of claim was amended to include this claim and two false innuendos were pleaded on behalf of Mr Bell.

41. The second set of words attributed to Mr Hinch, were -

"Now, I'm committed. I don't know for how long, but I'm committed to fight a misogynist, blokey-blokey bully boy station called 3AW. Their boss, Tony Bell, is suing me personally because I put some heat in his kitchen. Their own staff across town in Bank Street I know loathe and fear their management and their bully boy tactics."

45. Mr Bell has also pleaded facts in support of a claim for aggravated and/or exemplary damages in respect to the second broadcast.

48. In their amended defence, in addition to putting the plaintiffs to their proof in relation to a number of formal matters, the defendants have denied that the first words complained of were defamatory and that the plaintiffs have been injured or are entitled to any aggravated and/or exemplary damages.

51. In addition, the defendants have pleaded what has come to be known as a Polly Peck defence. It is alleged, in the amended defence, that part of the first words complained of "were understood to mean that the first plaintiff or further or alternatively the second plaintiff applied financial pressure to the former owners of 3AK in order to induce them to agree not to compete in the talk format market", and the pleading goes on to assert that in that meaning, "the first words were true in substance and in fact".

54. Particulars are given of the assertion and are confined to a letter dated 2 July 1997, sent by Mr Bell, on behalf of Southern Cross, to Mr Vern Stone, the then general manager of the then owner of 3AK Fusion Media Pty Ltd. A copy of the letter is attached to the amended defence.

57. In addition, the defendants have pleaded common law qualified privilege, the extended qualified privilege defence established by the High Court, and fair comment.

60. With respect to the second words complained of, they denied that they were defamatory of Mr Bell, and have pleaded the same two qualified privilege defences and fair comment.

63. In a reply filed 4 July 2001, the plaintiffs have pleaded malice in answer to the qualified privilege and fair comment defences in respect to both sets of words complained of.

67. On 25 May 2001, the plaintiffs, through Mr Bell, swore an affidavit of documents on behalf of the plaintiffs.

70. The defendants assert that the plaintiffs have not discovered all relevant documents and have applied, pursuant to Rule 29.08 of the Rules of Court, for an order requiring the plaintiffs to make and serve an affidavit stating whether particular documents have or have not been in their possession.

73. In their summons, filed 3 August 2001, the defendants seek orders in paragraph 1, that the two corporate plaintiffs file and serve an affidavit in respect to documents which have been identified in a number of categories. In addition, the defendants seek an order that Mr Bell file and serve an affidavit stating whether he has any documents in his possession which are identified in paragraph 1 of the summons. Alternatively, an order is sought that the claims brought by the two corporate plaintiffs be struck out or permanently stayed on the basis that the claims are scandalous, frivolous or vexatious, would otherwise delay the fair trial of the proceeding or are an abuse of the process of the Court. As I understood the last part of the relief sought, it is contended that the corporate bodies had to prove that they suffered some financial loss before they were entitled to damages. None was pleaded and it is submitted that they are not entitled to damages, therefore the claim should be struck out.

77. At the outset, it is important to emphasise what documents must be discovered. Rule 29.02(1) provides the answer. A party is obliged to make discovery, "of all documents which are or have been in his possession relating to any question raised by the pleadings." (Emphasis added).

80. The obligation concerns documents relating to any question raised by the pleadings. It is therefore important to consider what issues are raised by the pleadings.

83. Rule 29.08 gives power to the Court to require a further affidavit of documents if it appears to the Court that "there are grounds for a belief that some document ... relating to any question in the proceeding" may be or have been in the possession of the other party.

86. The Court proceeds on the basis that the affidavit of documents is conclusive but is given the power to go behind it, if there is anything before the Court which leads to the belief that there is a relevant document not discovered. There is now a more liberal approach to the obligation to discover, and the conclusiveness rule is no longer applied as stringently as it was in the past.

89. A party is not obliged to discover documents unless they do relate to a question raised by the pleadings. It is noted that the defendants have not pleaded or given any notice that, at trial, they will seek to adduce evidence of mitigating factors in reduction of the damages, if awarded.

92. The defendants seek further discovery from the two corporation plaintiffs. The damages recoverable by a corporation for defamation are limited when compared with a claim by an individual. A corporation can only recover damages where it is defamed in circumstances where the defamatory words are likely to injure its business or trading reputation. It follows that a corporation cannot recover damages for injuries to its feelings or self-hurt.

95. If the defamation is a libel, damages are presumed and at large. The issue is one for the tribunal of fact.

98. In addition to general damages for injury to its trading or business reputation, a corporation may also claim monetary loss as special damages, provided they are pleaded and proven. In addition to monetary loss which is claimed as special damages, a corporation may also claim general damages for loss of general custom, provided particulars are given of the general loss and evidence is placed before the tribunal of fact showing the effect of the defamatory words upon the business. See Andrews v John Fairfax & Sons Ltd (1980) 2 NSWLR 225 at 251-2. In other words, it is open to a trading corporation to allege and prove a general diminution of profits or decline of trade without naming particular customers or proving why they ceased to deal with it. See Ingram v Lawson [1840] EngR 324; (1840) 6 Bing. (N.C.) 212; 133 ER 84 at 85. Further, it would be open to a corporation to show the nature of its business before and after publication, to show the extent of its injury. But these claims are not in the nature of special damage. But they must be particularised, and would involve the calling of evidence of the plaintiff's trading and financial matters.

101. The two corporation plaintiffs have not pleaded special damage, have not alleged in their statement of claim what might be described as a general diminution or decline in their trade, and have expressly disavowed any injury to their good will. It is in these circumstances that Mr Gilbertson of Counsel, for the defendants, contends that the two corporation plaintiffs have not suffered any loss of a financial nature, and accordingly, their claims should be dismissed. It will be necessary to return to this submission later.

109. The first two categories of documents sought are the financial documents and accounts of the two corporations for the financial years ending 30 June 1998 through to 30 June 2000, and the nine month period from 31 March 2001, and profit and loss accounts in respect to the radio station 3AW for similar periods. In addition, the defendants seek discovery of the tax returns for the financial years ending 30 June 2000 and 2001, and the monthly business activity statements from 1 July 2000 to the end of August 2001.

112. It is submitted, on behalf of the defendants, that the documents are relevant to the question of damages. The corporate plaintiffs' counsel submit that they are not. They submit with some force that in the absence of any claim for special damages, or general damages based upon general diminution in trading profits or injury to good will, the documents cannot be said to relate "to any question raised by the pleadings."

115. Mr D. Gilberton of Counsel, on behalf of the defendants, submits that the decision of the Court of Appeal in Kay v Chesser [1999] VSCA 83; (1999) 3 VR 55 is decisive of the issue and accordingly, the defendants are obliged to discover the financial documents.

118. In that case, a company, carrying on business as a motor vehicle repairer, and one of its directors, sued for damages for defamation in respect of a radio broadcast. The defendant sought from the corporate plaintiff discovery of various financial records and income tax returns covering a period of some five years. The County Court judge refused an order for discovery of financial records because the corporate plaintiff sought only general damages for loss of reputation and did not claim any direct financial loss by way of special damages.

121. The Court of Appeal held that the plaintiff corporation was obliged to give discovery of its financial documents.

124. Ormiston JA, who delivered the reasons of the Court, considered the authorities and at p.61, said -

"In my opinion the learned judge in this case misunderstood the authorities, or so it may appear, to the extent of concluding that the provision of the financial documents sought 'could not be determinative of what was an appropriate sum of damages'. It may be, in the broader sense, correct to say that it was not 'determinative' but in my opinion it was highly relevant, having regard to the limited matters which could be established by the plaintiff corporation in its claim for damage to reputation and the defence ought to have access to those materials in order properly to prepare their case to meet that claim."

128. Clearly, it is correct that a corporation may only recover damages for a defamation which affects its trading character. Its trading character can be ruined by the publication of defamatory words. See South Hetton v N.E. News (1894) 1 QB 133 at 145. The company can bring a proceeding for libel in respect of words which injure its reputation in the way of its trade or business, and it is not obliged to allege or prove special monetary damage. See South Hetton v N.E. News, supra.

131. As was said by du Parcq LJ in D. and L. Caterers Ltd v D'Ajou (1945) KB 364 at 367 -

"A company cannot sue either for libel or for slander unless it is defamed in the way of its business. It follows that a corporation cannot be injured in its feelings."

135. But the question is then raised, if it does not seek to prove special damage loss or general diminution in its trading by reference to its financial figures, is it still entitled to recover substantial damages? In other words, no evidence is placed before the tribunal of fact with respect to its trading. The first words complained of are deemed to be a libel, see s.205 of the Broadcasting Services Act 1992, and it follows that damages are presumed. It is unnecessary to adduce any evidence on the issue, although the failure to do so would probably result in a modest award.

138. Mr Houghton QC, who appeared with Ms G. Schoff of Counsel for the corporate plaintiffs, informed the Court that it was not proposed to place any financial evidence before the Court on the question of damages. That being so, the tribunal of fact would be entitled to infer that the actual financial position of the trading corporation had not been affected by the publication of the words.

141. By reason of the fact that the corporate plaintiffs do not claim special damages or general damages based upon diminution of profits, many of the documents that have been sought could not be relevant to any issue.

144. In Calvet v Tomkies (1963) 1 WLR 1397, the plaintiff, who was a well-known film actress, sued in both libel and malicious falsehood for damages in respect of the publication of a number of articles.

147. At common law, in a cause of action for malicious falsehood, it is necessary for the plaintiff to prove, inter alia, that he or she actually suffered special damage.

150. By s.3 of the Defamation Act 1952 in England, the requirement to prove special damage was not necessary in circumstances where the words constituting the malicious falsehood were calculated to cause pecuniary damage to the plaintiff in respect of any office, profession, calling, trade or business held by him. In that regard, the Legislature introduced into the law of malicious falsehood, the principles concerning slander, actionable per se, where the words were in respect of one's office, profession et cetera.

153. The plaintiff, in that case, did not allege that she suffered any special damage. The defendants applied for discovery of her financial documents.

156. It was held, both at first instance and on appeal, that since the plaintiff was not seeking special damages, then any documents relating to her financial position were not relevant.

159. That case did not concern damages of a trading corporation. But the decision clearly demonstrates that in the absence of any claim for special damages or general damages based upon diminution of profits, the defendant is not entitled to discovery of the financial documents of a natural person. This is for the simple reason that they are not relevant to any issue.

162. In my opinion, the reasoning in that case is clearly correct and I would respectfully disagree with the observations made by Ormiston JA in Kaye v Chester, supra, at p.60 where he cast some doubt upon its application today.

165. But the case and the observations highlight the real issue here. That case was concerned with a plaintiff suing for personal damages, whereas this case is concerned with a trading corporation. It follows, in my opinion, that the defendants would not be entitled to financial documents, including tax returns, which may be relevant to a claim based upon loss of profits, whether the claim be for special damages or general damages. Nevertheless, in my view, some of the financial statements of the corporate plaintiffs are relevant to damages based upon a libel of its trading reputation, because they show the nature and extent of the trading reputation at the date of the publication of the alleged defamatory words.

168. In my opinion, the annual accounts and annual report (if any) of the corporate plaintiffs which were last brought into existence prior to the date of publication, are related to a question in issue, namely, the nature and extent of the trading reputation of the corporate plaintiffs. In addition, any accounts between that date and the date of publication which show the nature of its trading during that period, would also be related to a matter in issue and accordingly, are discoverable.

171. The defendants have sought profit and loss accounts, balance sheets and cash flow statements of the corporate plaintiffs and radio station 3AW for the financial years ending 30 June 1998 through to 2000, and the nine month period to 31 March 2001. They also seek the profit and loss accounts of radio station 3AW.

174. The radio station 3AW is not a party, and the corporate plaintiffs would only recover damages if the defamatory statements, if proven, lowered the reputation and standing of the trading corporations in respect to their trade or business. It is their trading reputations which are relevant.

177. In my opinion, the defendants are entitled to the profit and loss accounts of the corporate plaintiffs prepared for the period ending 30 June 2000, and any financial accounts prepared after that date up to 8 February 2001. The defendants are not entitled to any profit and loss accounts with respect to radio station 3AW.

181. The question arises whether radio ratings surveys could be relevant to any issue in the proceeding. In my view, they could be relevant to an issue in the proceeding concerning damages of the corporation plaintiffs. To determine the nature of the corporation's business and its trading reputation, it would be relevant to know its ratings and the numbers of persons who listen at any particular time. Circulation has always been relevant in newspaper libels, and, in my view, it is arguable that such evidence would be admissible in respect to the question of damages suffered by the corporation. In my view, those documents should be discovered.

C. Documents Relating to Sale by the Corporation Plaintiffs of 3AK

185. The defendants' summons seeks documents relating to the sale, in or about July 1996, of the commercial licence of 3AK. It is assumed that that would be a sale by the two corporation plaintiffs. The defendants also seek any documents concerning loans or credit facilities provided by the two corporation plaintiffs to, one assumes, the purchaser, and all documents concerning re-payment of any loan or credit facilities. There is no evidence to suggest any of the latter groups of documents exist.

188. The sale in question was to 3AK Fusion Media Pty Ltd, the previous owner to Kingsbay.

191. Mr Gilbertson submitted that these documents were relevant to the plea of aggravated and exemplary damages claimed by the plaintiffs. He referred to the particular numbered (ii), subjoined to paragraph 9 of the amended statement of claim. He said that they were also relevant to the plea of malice in the reply, and the objective truth or falsity of the justification Polly Peck defence relied on by the defendants.

194. The Polly Peck defence is pleaded in respect of the words first complained of. It alleges that the words complained of in their ordinary and natural meaning, meant that Mr Bell or Southern Cross Broadcasting had applied financial pressure to former owners of 3AK in order to induce them not to compete in the talk format market. It is alleged in that meaning, that the words were true in substance and in fact. The particulars sub-joined to the paragraph refer to a letter written on 2 July 1997 by Mr Bell to Mr Vern Stone, General Manager of 3AK Fusion Media Pty Ltd, which was the purchaser of radio station 3AK from Southern Cross.

197. It appears from that letter, which was written in July 1997, that up until then, Southern Cross Broadcasting was providing, free of charges, its news service to 3AK, on the basis that the latter was financially incapable of paying for the service. Mr Bell noted in the letter that a number of 3AK's activities would contradict that impression. One "of 3AK activities" was that there was a noticeable increase in the level of "talk" on the station, which was aimed to attract 3AW listeners.

200. Mr Bell's letter concluded by stating that as from 1 August 1997, the news facility would be made available for an annual fee of $60,000.

203. In my opinion, the documents concerning the sale and any credit facilities made available to the purchaser, are not relevant to damages, aggravated or exemplary damages, or the plea of malice.

206. Particular (ii) sub-joined to paragraph 9, which claims aggravated and/or exemplary damages, is in the following terms -

"(ii) The words complained of were published with reckless indifference to the truth or otherwise of the imputations set out in paragraph 7 hereof."

210. Mr Gilbertson says that the plea raises the issue of truth and that the documents sought are relevant to that issue.

213. That plea does not raise the question of truth. The complaint is made that before the publication of the first words complained of, no steps were taken to determine the truth or otherwise of what was said. In my view, that does not raise the question of truth, and the documents sought concerning the sale in 1996, are not relevant to the claim for aggravated or exemplary damages.

216. But are the documents related to the issues raised by the Polly Peck justification defence?

219. In order to establish a plea of justification, it is necessary for the defendant to prove that the defamatory imputation is true as well as prove the truth of all material statements in the libel. In other words, he must prove that the sting of the libel is true. These are all well-established principles of law.

222. A defendant is obliged to give particulars of justification and at trial, is not permitted to give evidence not fairly included in the particulars. See Yorkshire Provident Co v Gilbert (1895) 2 QB 148 at 152.

225. In the present matter, the defendants have given particulars of their Polly Peck defence. The particulars at the moment confine the evidence to the letter dated 2 July 1997, to which I have already referred.

"Further particulars may be provided after discovery and interrogation."

232. The general rule is that a defendant must give particulars of the facts he relies upon in support of a plea of justification, and is not entitled to obtain discovery prior to giving particulars. In Zierenberg v Labouchere (1893) 2 QB 183, it was held on appeal that a defendant was obliged to give particulars of justification, and is not entitled to obtain an order for discovery prior to providing the particulars.

235. At the moment, the Court is concerned with the question whether the 1996 sale documents to the previous owner are related to any issue raised on the pleadings, as they stand at present. The emphasis is on the issues raised by the present pleadings.

238. The subject of the letter relied upon by the defendants, dated 2 July 1997, is the provision of free news services to 3AK. The letter makes it clear, for a number of reasons, that the service would no longer be free. I am not persuaded on the material before the Court, namely, the pleadings and the letter, that the documents relating to the sale in 1996 by Southern Cross to 3AK Fusion Media Pty Ltd, or indeed any agreements concerning the provision of credit arising out of that sale, are in any way relevant to the subject matter of the letter and the plea of justification.

241. The justification plea is that Mr Bell and/or Southern Cross brought financial pressure to bear on the former owners of 3AK not to compete in the talk format market, and the facts relied upon are contained in the said letter. They are the only facts relied upon. Nothing in the letter expressly or impliedly refers to the sale.

244. Discovery must be related to the questions in issue.

247. In Yorkshire Provident Life Assurance Company v Gilbert, supra, at p.152, Lindley LJ said, in respect to a plea of justification and discovery, the following -

"The defendant's right, then, is to have discovery of all matters relating to the questions in issue as narrowed by the particulars. I do not think in a libel action it is entitled to get anything more. Has he, then, had discovery of all those matters which are relevant to the issues which are thus limited?" (Emphasis added).

251. The documents are not relevant to an issue. Further, the general rule is that the affidavit of documents is conclusive (see Jones v Monte Video Gas Co (1880) 5 QBD 556), subject to proof of the possession or former possession by the opposing party, of a document. The proof may come from a myriad of sources. The approach now is more liberal to the question of further discovery - see Rule 29.08. But despite that more liberal approach, I am not satisfied the last two categories of documents concerning credit et cetera, ever existed.

254. The defendants are not entitled to further discovery in respect of the sale and alleged associated documents.

Documents from July 1996 to February 2001 Relating to News Services

258. Sub-paragraphs (g) and (h) of paragraph 1 of the summons seek documents over the period from July 1996 to February 2001, passing between the plaintiffs or any of them and 3AK Fusion Media Pty Ltd or its employees, in connection with the provision of Southern Cross Broadcasting news services to radio station 3AK or with respect to "the talk format" conducted by radio station 3AK.

261. It is submitted that those documents must be related to the issues raised by the Polly Peck justification defence.

264. It is said that the subject of the defence is the financial pressure brought to bear by Mr Bell and/or Southern Cross against the former owners of 3AK, to not compete in the talk format market, and in support of that plea, reference is made to a letter. What is now sought are other documents concerning the same topic. It is said that any documents which pass between the two radio stations must be relevant to that issue if they do concern the provision of news services and the question of 3AK's talk format broadcast.

267. Counsel for the plaintiffs submitted that the defendants were on a fishing expedition to see whether there were other factual matters that supported the plea. It is clear, at this time, that the defendants have nothing more in support of their plea than the letter of 2 July 1997. At the moment, their case rises or falls depending on that one letter.

270. Mr Gilbertson referred to the Court of Appeal decision of Goldschmidt v Constable (1937) 4 All ER 293. The Court of Appeal was concerned with whether a judge could make an order that the provision of particulars of justification should stand over until discovery.

"I am satisfied by the argument of Mr Holmes that in a libel action the party who alleges that the defamatory statements are true must make out his case on the information which he had in his possession at the time when the defence was delivered. He is not entitled to wait for discovery in order to complete his attack, but must give full particulars before discovery."

277. This observation seems to me to be an answer to Mr Gilbertson's submission. However, in my view, what his Lordship said must be taken in context. He was concerned with the issue of whether particulars could wait pending discovery. In my opinion, if further evidence was to come to light which supported the plea of justification, it would be open to the defendant to amend his particulars and rely upon the evidence at trial.

280. The particulars given limit the issues at this moment in time. The defendants would be entitled to any documents which support the matters raised by them in their particulars.

283. The particular issue concerns the provision of free news services and a decision made to charge thereafter. It is said that that constitutes financial pressure.

286. If there are any documents concerning the provision of free news services up to 2 July 1997, then, in my opinion, they ought to be discovered. But the mere fact that the defendants raise the topic of the talk format market, does not, in my view, entitle the defendants to any documents in the possession of the plaintiffs concerning talk format on 3AK. What the defendants are seeking to do is to cast around, hoping they may find some factual matters which may support the broadcast made on the first occasion.

289. I am prepared to infer that there may be a document or documents in the possession of the plaintiffs concerning the provision of free news service to 3AK, prior to the letter dated 2 July 1997. If any documents concerning talk format were relevant and hence discoverable, contrary to my view, there is no evidence that such documents exist. In this regard, I accept, in accordance with the usual principles, the affidavit of documents already provided on behalf the plaintiffs, subject to proof under Rule 29.08. There is no basis for concluding that any such documents exist.

292. The defendants are entitled to discovery of any documents concerning the provision of free news service.

296. The defendants are entitled to discovery of any documents relating to radio ratings surveys, the relevant accounts as at 30 June 2000 up to 8 February 2001, and any documents concerning the provision of the news service.

300. In the alternative to further discovery, the defendants seek an order, pursuant to Rule 23.02 of the Rules of Court, that the second and third plaintiffs' claims be struck out.

303. Mr Gilbertson submitted that since the corporate plaintiffs were not claiming any special damage, or general damages based upon any diminution in their profits, as a result of the defamatory communication, or any pecuniary loss of good will, the corporate plaintiffs were not entitled to any damages.

306. In my opinion, the submission is misconceived.

309. A trading corporation is entitled to recover damages for a libel which injures its reputation in the way of its business, without the proof of any special damage.

312. In South Hetton Coal Company Limited v North-Eastern News Association Limited, supra, the plaintiff company owned collieries and sued the proprietors of a newspaper which severely criticised the housing provided to the miners by the plaintiffs.

315. The plaintiffs sought general damages, but did not plead or prove any special damages. In other words, it did not prove any financial loss flowing from the defamatory publication.

"Statements may be made with regard to their mode of carrying on business, such as to lead people of ordinary sense to the opinion that they conduct their business badly and inefficiently. If so, the law will be the same in their case as in that of an individual, and the statement will be libellous. Then, if the case be one of libel - whether on a person, a firm, or a company - the law is that damages are at large. It is not necessary to prove any particular damage; the jury may give such damages as they think fit, having regard to the conduct of the parties respectively and all the circumstances of the case." (Emphases added).

322. It is necessary for the corporation plaintiff to prove that the words complained of did injure the corporation in relation to its trading or business reputation. If it is a libel, then the same principles apply to it, as to an individual. Damages are presumed. It is entitled to recover general damages. It is not obliged to claim any financial loss before recovering general damages.

325. I refer to South Hetton Coal Company, at pp.141, 143 and 145.

328. At p.148, Kay LJ summarised the position when he said -

"I therefore am of opinion that a trading corporation may sue for a libel calculated to injure them in respect of their business, and may do so without any proof of damage general or special. Of course if there be no such damage the damages given will probably be small." (Emphasis added).

332. I respectfully agree with his Lordship, but I would query his assertion that, in the absence of any such evidence, the damages probably would be small.

335. Each case must depend upon its own particular circumstances. Damages are presumed. .

338. A plaintiff may always recover general damages for a defamatory statement without the necessity of proving whether he had a good or bad reputation, or in fact suffered any actual damage. See Hobbs v Tinling (1929) 2 KB 1 at 17.

341. The plaintiffs do not have to prove their reputation. It is presumed that they have a good reputation. They do not have to prove any actual damage. That rule applies not only to the individual, but also to the corporate body.

344. Mr Gilbertson relied upon what was said by Lord Reid in Lewis v Daily Telegraph Ltd (1964) AC 234 at 262, where his Lordship said -

"The company cannot be injured in its feelings, it can only be injured in its pocket. Its reputation can be injured by libel but that injury must sound in money. The injury need not necessarily be confined to loss of income. Its good will may be injured."

348. What Lord Reid said, if taken literally, is misleading. The point his Lordship was making is to distinguish the corporation from the individual. The individual can recover damages for injury to feelings, whereas a corporation cannot.

351. But it is unnecessary for the individual, or the corporation who is libelled, to prove any actual financial damage. In both cases, the plaintiff is entitled to general damages. They are not necessarily confined to nominal damages. The amount will depend upon the circumstances of the case.

354. In the present matter, if the corporate plaintiffs prove that the words spoken on the first occasion were defamatory of either of them, and defamed them in the way of their business, then they are entitled to general damages which, depending upon the circumstances, could be substantial. The corporate plaintiffs would not be obliged to provide any evidence of a financial nature in order to recover the substantial damages.

357. In Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; (1966) 117 CLR 118, Windeyer J, at p.150, in discussing damages in a defamation case, said this in relation to an individual -

"When it is said that in an action for defamation damages are given for an injury to the plaintiff's reputation, what is meant? A man's reputation, his good name, the estimation in which he is held in the opinion of others, is not a possession of his as a chattel is. Damage to it cannot be measured, as harm to a tangible thing is measured. Apart from special damages strictly so called and damages for a loss of clients or customers, money and reputation are not commensurables. It seems to me that, properly speaking, a man defamed does not get compensation for his damaged reputation. He gets damages because he was injured in his reputation, that is simply because he was publicly defamed. For this reason, compensation by damages operates in two ways - as a vindication of the plaintiff to the public and as a consolation to him for wrong done." (Emphasis added).

361. A corporation is not entitled to obtain any damages for consolation or what is described as injuries to feelings, for obvious reasons, but it is entitled to damages as a vindication of its reputation to the public. The reputation with which we are concerned is its trading or business reputation. And like the individual, it is entitled to substantial damages to restore its reputation in the community.

364. It follows that the application to strike out the claim against the two corporation plaintiffs must fail. They are entitled to recover general damages, indeed of a substantial sum, even though they have not placed any evidence concerning their financial position before the Court. The evidence may show that they are large trading corporations and that their reputation must be restored in the eyes of the public, because of the attack on their trading reputation. The damages may be something more than nominal.

367. It follows that, save for an order for discovery of a limited category of documents, the defendants' summons must be dismissed.

370. Subject to any submissions from Counsel, I propose to make the following orders -

(i) That the second and third plaintiffs file and serve a further affidavit of documents discovering any documents concerning radio ratings surveys of radio station 3AW from 8 February 2000 to the present, their annual accounts as at 30 June 2000 and annual reports, if any, their balance sheets and profit and loss statements prepared on and after 1 July 2000 to 8 February 2001, and the provision of the free news service;

(ii) that otherwise the defendants' summons filed 3 August 2001 is dismissed.

376. I will hear Counsel on the question of costs.