District Court of SA|1999-03-16|Before: Gilbert Motors P

For the reasons that I have given earlier, I consider Trevor Clark to be unreliable in a number of respects. I repeat that he was very emotional about events which had occurred. In respect of some matters he was in error both as to when events occurred and what occurred. His evidence conflicted with that of his wife as to when the oil leak was first observed. I consider that he reconstructed much of his evidence. In cross examination he was evasive in respect of a number of matters. An illustration of his evasive answers was when the note which it was alleged he left on the front seat of the vehicle was put to him, he refused at first to acknowledge his own handwriting or to give any direct answers in cross examination as to the purpose for which the note was prepared. His answers, when he eventually responded, were unsatisfactory.

Pangallo made no effort to seek corroboration of Trevor Clark's assertions. He took at face value Trevor Clark's account of his dealings with the car yard. For example, he accepted that Trevor Clark had on six occasions made appointments for City Downtown Cars to look at the car and the dealer had cancelled each time. The evidence did not support this allegation.

I conclude that although BGM were slow to react to Trevor Clark's complaints, once the RAA report had been received, BGM and Gilbert were prepared and had commenced to rectify warrantable defects.

I find that the defendant has failed to establish the truth of its broadcast and the defence of justification in respect of each publication fails.

Further, the defendant has claimed that such words constitute fair comment on a matter of public interest, namely :

1. The effectiveness of the law in regulating certain sales to the public of second hand motor vehicles by motor vehicle dealers and the conduct of regulated sellers of such vehicles in relation thereto; 2. The market for second hand cars and the protection of the law for consumers who purchase second hand cars in that market given that members of the public need to have confidence and have a legitimate interest in a proper system for the regulation of sales to the public of second hand cars by motor vehicle dealers and the protection for consumers who purchase second hand cars.

The defendant pleads as particulars of comment the following words :

"The Promotion The Adelaide car yard caught out on customer service The Broadcast Buying a used car is always a bit of a gamble. But a warranty is supposed to offer new owners a guarantee that should the worst happen, they will be covered, but it seems that how and when a dealer chooses to honour that warranty can be a matter of debate. Trevor Clark is a battling father of three The car needs major repair work This is one of the reasons why it is a lemon. Trevor Clark has every reason to believe he's bought a lemon. the motor and everything's A1. A1 - huh, I wouldn't give it an A3. It's s(remainder of word shitty deleted). I'd go and give it to their wrecking yard in this condition. Ya know I've had nothing but troubles. And this is the after sales service that he got when he demanded serious problems identified in an inspection carried out by the RAA be fixed. sane lemon bought The car was worth, really nothing. There was a good body that's about it. That was all that was going for it. Engine wise it was worth nothing, there was a lot of work needing to be done on it. Transmission was gone. The gas unit was shot. Fed up and out of pocket through fighting for his rights. Now Trevor is finding it hard to get City Downtown and its owner Robert John Gilbert to fix his car. he's angry and frustrated because the car yard has so far failed to act on the major repairs. all we want to do is get our car fixed under warranty and its getting very frustrating for me. We are at the point, I can't take any more of it. All I want is the car fixed. But as tearful Trevor has come to expect, it was yet another wasted exercise. Consumer Affairs will investigate what appears to be a breach of regulations by the car yard in incorrectly advertising the wrong name and dealer licence details. Now they claim they are going to fix my car cause I got you guys involved in it. If I hadn't got you guys involved this would carry on and on. The Follow-Up Still we have some good news on two recent stories. Robert John Gilbert finally kept his word, and his warranty obligations."

The defendant submits to the extent that the matters broadcast were defamatory they constituted fair comment on a matter of public interest, namely the effectiveness of the law governing the sale of second hand motor vehicles to the public and the level of protection afforded to consumers. As I have already indicated Mr Swan submitted that the segment focussed on the problems consumers experience in getting second hand car dealers to attend to warranty matters in a timely manner. He said to the extent that there was a message conveyed which was derogatory in some way of Gilbert the message inferred that the business was one that fails to promptly attend to warranty matters. Mr Swan submitted that what was being asserted was that the plaintiffs delay in fixing the car and that Channel 7 was making the comment that it was not a proper delay.

At common law it is a good defence to an action for defamation to prove that the matter complained of constituted fair comment on a matter of public interest. For the defence to succeed the fair comment must be recognisable as comment, the comment must be based on fact and the comment must be fair and on a matter of public interest. In Bellino v The Australian Broadcasting Corporation [1996] HCA 47; (1996) 185 CLR 183 a majority of the High Court comprising Dawson McHugh and Gummow JJ concluded at page 219-200 that at common law:

"a subject of public interest was understood in the law of defamation to refer to the conduct of a person engaged in activities that either inherently, expressly or inferentially invited public criticism or discussion".

I conclude that the honouring of statutory warranties by second hand car dealers can be categorised as a matter of public interest.

The question then arises as to whether the statements complained of are statements of comment as opposed to statements of facts. In order to qualify as a comment a statement must be an expression of opinion. The plaintiffs submit that the words set out in paragraph 18 of the defence constitute statements of fact not comments. In the alternative the plaintiffs say that the words are so interspersed with inaccurate statements of fact that an ordinary viewer would be unable to distinguish what is being put forward as fact and comment. As King CJ observed in Rocca v Manhine (1992) 57 SASR 224 at 229, it is frequently difficult to distinguish between statements of opinion amounting to comment and statements of fact especially where the imputation is one of disgrace or dishonourable conduct.

The defendant pleads in paragraph 18 of the defence that various words in the promotion broadcast and follow up constitute comment. I do not accept that the words in the promotion "The Adelaide car yard caught out in customer service" constitute comment. In my view that is a statement of fact which imputes that BGM and Gilbert were dishonourable and had been caught out in failing to fix Trevor Clark's car and undertake warranty obligations.

Furthermore the broadcast may contain some statements that could be interpreted as comment, but there are a number of statements such as Trevor Clark's statement:

"every time I take my car down for repairs they don't warranty the repairs. Or they do half of one or two jobs. Leave half a dozen other jobs to be done"

and the suggestion by Pangallo as he pursued Gilbert that Gilbert is not going to fix the car, did not amount to comment. The statement by Pangallo:

"Well we will leave if you carry it out but if you don't we will come back after you",

was not a comment. In my view it inferred that BGM and Gilbert were dishonest and dishonourable and had refused in the past to undertake their obligations and Channel 7 will continue to pursue them until they act honourably.

The above are some examples of material which, in my view, went beyond fair comment. I do not regard the tenor of the broadcast to be as Mr Swan submitted, a comment about warranties. The tenor of the broadcast was that Channel 7 was exposing a dishonest dealer. I reject the defendant's submission that the various broadcasts amounted to a fair comment on a matter of public interest.

The plaintiffs further allege that if the statements amount to fair comment then the defence is defeated by malice on the part of the defendant. Ms Nelson QC drew particular attention to the behaviour of Pangallo towards Gilbert, the fact that Channel 7 was aware that work had been done by BGM prior to the broadcast and that Channel 7 had received, but not responded to, Anderson's letter of 21st November 1997. It was submitted that the defendant had exhibited prejudice and had been deaf and blind to anything that would interfere with the story which sought to expose BGM and Gilbert.

"The plaintiffs say that if, which is denied, the defence does apply to the benefit of the defendant such defence is qualified only and will be defeated by the actual malice of the defendant which is alleged to exist in the instant case. Paragraph 23 Particulars of Malice 23.1 Prior to the broadcast of the promotion and the broadcast repairs had already been effected to the car of which the defendant was or ought to have been aware. 23.2 At the time of attendance of the defendant's film crew at the Caltex Service Station namely on the 21st day of November 1997 repairs had been and were being effected to the car and the defendant was aware of this. 23.3 On the 24th day of November the plaintiffs by their solicitors wrote to the defendant in the following terms (The pleading then sets out the letter of Messrs Andersons which I have set out earlier in this judgment.) 23.4 The defendant published the broadcast and the follow up without responding to the said letter. 23.5 The defendant failed to provide the plaintiffs at any time with an opportunity to refute the allegations which had been made to it by Trevor Clark and which were the subject of the promotion, the broadcast and the follow up."

In order for the plaintiffs to establish actual malice they must establish that the defendant was actuated by improper motive. Differing conduct such as absence of belief in the truth of the allegation, recklessness as to whether the matter complained of was true, failure to make a due inquiry, and conduct of the litigation are just some of the matters the plaintiffs are entitled to rely upon to establish actual malice. For a finding of express malice the court must be satisfied that the occasion of qualified privilege has been abused and that must be proved positively by credible evidence.

In Horrocks v Low (1975) AC135 Lord Diplock at page 149 dealt with qualified privilege and the loss of that privilege if the occasion which gives rise to it is misused. If the defendant is actuated by improper motive then that amounts to malice. His Lordship said:

"But to destroy the privilege the desire must be the dominant motive for the defamatory publication; knowledge that it will have that affect is not enough if the defendant is nevertheless acting in accordance with a sense of duty or in bona fide protection of his own legitimate interests."

"If he publishes untrue defamatory matter recklessly, without considering or caring whether it be true or not, he is in this, as, in other branches of the law, treated as if he knew it to be false. But indifference to the truth of what he publishes is not to be equated with carelessness, impulsiveness or irrationality in arriving at a positive belief that it is true. The freedom of speech protected by the law of qualified privilege may be availed of by all sorts and conditions of men. In affording to them immunity from suit if they have acted in good faith in compliance with a legal or moral duty or in protection of a legitimate interest the law must take them as it finds them. In ordinary life it is rare indeed for people to form their beliefs by a process of logical deduction from facts ascertained by a rigorous search for all available evidence and the judicious assessment of its probative value. In greater or in less degree according to their temperaments, their training, their intelligence, they are swayed by prejudice, rely on intuition instead of reasoning, leap to conclusions on inadequate evidence and fail to recognise the cogency of material which might cast doubt on the validity of the conclusions they reach. But despite the imperfection of the mental process by which the belief is arrived at it may still be 'honest', that is, a positive belief that the conclusions they have reached are true. The law demands no more. ... Judges and juries should, however, be very slow to draw the inference that a defendant was so far actuated by improper motives as to deprive him from the protection of the privilege unless they are satisfied that he did not believe that what he said or wrote was true or that he was indifferent to its truth or falsity."

His Lordship considered the question of reckless disregard of the truth or falsity of a statement and he made the following observation at page 152-153 :

"If 'reckless' here means that the maker of the statement has jumped to conclusions which are irrational, reached without adequate inquiry or based on insufficient evidence, this is not enough to constitute malice if he nevertheless does believe in the truth of the statement itself. The only kind of recklessness that destroys privilege is indifference to its truth or falsity."

There is much force in Ms Nelson's submissions that Pangallo and Channel 7 acted without properly investigating the truth of the allegations made by Trevor Clark. I conclude that Channel 7 failed to make proper enquiries of the plaintiffs, and when they received the letter from Messrs Anderson of 21st November 1997, they ignored it without giving the plaintiffs an opportunity to put their side of the story.

However, these failures do not amount to malice unless I am of the view that Pangallo and/or other senior officers of Channel 7 either did not believe that what they were publishing was true or without considering or caring whether it be true or not they published.

Pangallo gave evidence that he accepted Trevor Clark as being an honest and accurate source of information. In my view Pangallo's failure to make any independent enquiries to attempt to corroborate the complaints of Trevor Clark were at the very least careless but I do not consider that that conduct alone equated to indifference to the truth.

However Mark Clark gave evidence that he spoke to Pangallo on Friday, 21st November 1997 when Mark Clark impersonated Gilbert. I accept his evidence that he told Pangallo the history of the relationship between City Downtown Cars and Trevor Clark and that during the conversation he made it clear to Pangallo that City Downtown Cars was not avoiding its obligations to Trevor Clark and that the company was prepared to fix everything they were legally required to do. I accept Mark Clark's evidence that Pangallo said to him: "Well we're going to put it to air anyway".

I conclude that Pangallo had been put on notice that what may be going to air was untrue and his conduct and that of Channel 7 therefore went beyond mere carelessness, impulsiveness or irrationality. I conclude that Pangallo and Channel 7 were indifferent to the truth of the material they intended to publish, well knowing that it may not be accurate.

I am fortified in my conclusion by the fact that when Andersons letter was delivered it was ignored and no contact was made with Andersons or Gilbert in order to ascertain the other side of the story. A blind eye was turned, and Channel 7 acted with reckless indifference. I conclude that if a defence of qualified privilege exists, which I have rejected, then any defence of fair comment is defeated by my finding of malice.

I find that the broadcast was not a balanced public interest piece concerned with the problems involved in ensuring that secondhand car dealers honour their warranties. I find to the extent that it was comment, it was based on unsubstantiated facts. I also hold the defence of fair comment is defeated by actual malice on the part of Channel 7.

The plaintiffs plead that the broadcast of the segment on the Today Tonight programme has greatly injured the character, credit and reputation of Gilbert. The witnesses, Samuel Cutajar, Lawrence Clothier and William Stagg gave evidence that Gilbert was held in high esteem in the industry. He had been involved in the wholesaling and retailing of cars for thirty years and he was known for his honesty and personal integrity. Gilbert presented in the witness box as a proud man whose reputation meant a great deal to him. Channel 7 acknowledged that no allegation of impropriety had previously been made against him.

Mrs Gilbert gave evidence that prior to November 1997 her husband was an even-tempered person, that he was outgoing, a great talker, placid, calm, reliable and totally predictable. He was an extremely capable and confident person. He was self-motivated and he was acknowledged as the best wholesale car dealer in Adelaide. Other witnesses who work in the industry confirmed that Gilbert was well regarded and successful, particularly in the car wholesale trade.

Mrs Gilbert said that after the incident he had completely changed. She spoke to him on Friday 21st November 1997 at about lunchtime and he appeared quite normal.

He arrived home from work that day at about 7.30pm. He was later than usual. She noticed that he appeared different. He was extremely distressed and concerned about the effect the broadcast would have on her. He was concerned about his unblemished record and reputation and he felt that all his years of hard work had been ruined. He was angry and emotional. She said that she spoke to Mark Clark during the evening about the possibility of contacting Channel 7, but after speaking to him did not do so.

They saw Messrs Andersons on Monday, 24th November and the letter to which I have referred earlier was written on the Gilberts' instructions that day.

They watched the broadcast on Monday evening. There were several phone calls after the broadcast, including some from interstate. Gilbert became extremely upset. He considered that his reputation had been destroyed. During the week he attended at Consumer Affairs and spoke to them. His distress continued throughout the week and Mrs Gilbert described how he was admitted to Ashford Hospital on Wednesday 26th November after he complained of chest pain.

Mrs Gilbert described her husband as being a different person than he was prior to 21st November 1997. She said he has become very irritable and at times quite nasty. He has reduced her to tears on several occasions. She has observed that his memory has deteriorated, that he is excessively tired, and he does not want to socialise. He becomes upset easily and appears to get very depressed.

She said that she was concerned about the future because he had intended to gradually get rid of the stock in the caryard and go back to wholesaling. That would have taken twelve months. He has suffered concentration loss and weight loss and has disturbed sleeping habits. These symptoms did not exist prior to the 21st November 1997.

Gilbert gave evidence that he consulted his family doctor, Dr Trigg, who referred him to Dr Ewer, a consultant psychiatrist, who he had seen some years before for depression. Gilbert described watching the programme as probably the worst experience of his life.

Gilbert has been prescribed various antidepressant drugs. He claimed he has been distressed, experienced memory loss and tiredness and inability generally to cope. Currently he is not working regularly but he does trade a little in antiques.

I conclude that Gilbert had, over thirty years, developed a fine reputation in the motor trade industry. I accept Gilbert's evidence that he considered his reputation to be of great importance to him. I consider that the manner in which the defendants conducted these proceedings have caused additional distress and added pressure to Gilbert.

In assessing general damages I have had regard to awards of damages in the past. Furthermore I have had regard to the decision of the Court of Appeal in Chakravarti v Advertiser Newspapers Limited reported on 14th October 1998, judgment number S6901. In that case the court in dealing with the question of general damages said :

"We remind ourselves, first of all, of the purpose of the award of general damages. We bear in mind amounts awarded for pain and suffering in the cases of serious personal injury. We remind ourselves of the general level of awards in this State, but emphasise again that the number of cases is relatively small and does not provide much by way of guidance. We bear in mind, as best we can, the level of awards in other States and in the Territories of Australia. We consider the nature of the injury done, and importance for the need for vindication as well as consolation for personal distress and hurt. We remind ourselves that the damage to the plaintiff's reputation is damage of a type to which a person working in the finance industry would be particularly vulnerable, because it was damage to his reputation for honesty."

Gilbert's reputation was a matter of extreme importance to him both as an individual and in his capacity as a car dealer and businessman in South Australia. I accept that the judgment of this Court will assist in redressing the damage that has been done which, in my view, was extensive.

The plaintiffs seek aggravated damages. Matters such as absence of an apology, the conduct of the case and the failure of Channel 7 to respond to Gilbert's solicitors are matters which can justify an additional sum in respect of aggravated damages (See Mirror Newspapers Ltd v Jools (1986) 68 ALR 174 at 177; Rookes v Barnard [1964] UKHL 1; (1964) AC 1129 at 1221). The defendants have pursued a vigorous defence of justification. Gilbert was cross-examined at length. No apology has been forthcoming and letters from Gilbert's solicitors have been ignored. Gilbert was not given an adequate opportunity to respond to the allegations. I do not accept that Pangallo gave him a fair opportunity to respond. Pangallo called upon a response from Gilbert in a highly charged situation. Gilbert was not given an opportunity to seek advice or consider the position in a non-confrontational situation. After he had sought advice and his solicitors wrote on his behalf the letter was ignored.

I conclude that the conduct of Channel 7 had the effect of increasing the injury to Gilbert's feelings and creating greater distress and anxiety on his part.

I consider there are circumstances of aggravation in this case which I take into account in determining the quantum of general damages. I note that aggravated damages do not constitute a distinct category of damages under which a separate sum of money is awarded, so I have included it in the overall amount under the head of general damages. (See: Waterhouse v Station 2 GB Pty Ltd (1988) 1 NSWLR 58 at 75). I have increased the award by about 10% taking into account the additional stress to Gilbert.

In arriving at an award for general damages, I have had regard to the purposes of damages in defamation as referred to by Doyle CJ and Perry J in their judgment in Chakravarti's case, namely, consolation for personal distress and hurt caused by the publication, reparation for the harm done to Gilbert's personal and business reputation and vindication of that reputation.

I consider that the appropriate award in this case is $100,000, and for the purpose of calculating interest the amount of $75,000 might fairly be regarded as applicable to the period before trial, which in my opinion was when most of the damage would have been done to Gilbert's reputation.

As to BGM, it is pleaded that the company has suffered loss and damages as a result of injuries to its reputation and goodwill. The company had operated at the Marleston premises under the trading name of City Downtown Cars for two years before the broadcast. In my view in respect of general damages I do not consider that the company is entitled to any award as its reputation relied solely upon the reputation of Gilbert. As I have made an award to Gilbert I do not consider that the company is entitled to any additional amount in general damages. I therefore award a nominal amount of one dollar.

I now turn to the question of economic loss. The plaintiffs contend that as a direct result of the broadcast and its effect on the health of Gilbert, BGM was forced to close the car yard. The business ceased trading on the 6th December 1997. Bob Gilbert has not worked since the broadcast and is pessimistic about his ability to work in the car industry again in the future.

It is settled law that a defendant in action in defamation is liable to compensate the plaintiff for loss of earning capacity consequent upon the defamation. (See Chakravarti v The Advertiser(ibid)).

The plaintiffs called Mr Macklin who is the accountant for BGM and Gilbert. Mr Macklin did not calculate the gross profit of the business nor did he give any evidence as to the value of the business.

Mr Macklin took as a starting point a report of Mr David Crase, a partner of Sims Lockwood Accountants.

Mr Macklin was asked in cross examination (at p448) :

"Q So does that mean in preparing "P24" (Mr Macklin's report) you are not telling us what your assessment of the gross profit is, but rather doing an exercise to compare some information with what Sims Lockwood and Partners have arrived at. A That's correct. Q So in other words if Sims Lockwood have got it completely wrong then so have you. A No, there's nothing wrong about what has been put on paper. All I have tried to do is to clarify some calculations that were done by Sims Lockwood, and found that when I went through I came up with different figures. Q But when, on the second page of your report you say there's a gross profit figure of $19,167 you are not really saying that was the gross profit of the company for the year. All you are doing is saying that was a figure you would get making an adjustment to the Sims Lockwood figure. A That's correct. Q So you are not able to tell us what the actual profit for the year was. A Not without going to my file. Sims Lockwood have put that gross profit figure in at $45,265, they called it the gross profit so I was just doing the same, that's all. There was certainly no malicious attempt or misleading or misguiding anybody. It was purely an exercise of comparing the two from the records as I saw them. Q I understand, but if Sims Lockwood had done that exercise, because they haven't got the information about the closing stock for example, you would agree that would be an element to add into the calculations to determine the profitability for the year. A Yes. Q If that is the situation no-one has done the exercise. A If it hasn't been completed, that's quite right. HIS HONOUR Q Have I got some academic exercise here without knowing what the real figures are, is that the position. A Yes, all I was intending was to clarify from my understanding of the records, figures that have been listed here. It was not my intent to go through a whole exercise of determining the profit for the year."

He was then shown the Sims Lockwood report ("D4"). He was asked if he accepted that the figures in that report which showed profitability for the company for the years ended 30th June 1993 to 30th June 1997 as correct as derived from the records of the company. He said he agreed, although he had not checked them, but he was sure they were correct.

Mr Macklin did not perform an exercise to assess the gross or net profit of the business. He took as his starting point a report of Mr Crase, who was called on behalf of the defendant.

Gilbert decided to close the car yard and it closed its doors on the 6th December, 1997. Gilbert made the decision because the business depended upon him personally and he considered he was in no position to operate it. I conclude that the broadcast so damaged the reputation of City Downtown Cars and Gilbert that it was a reasonable decision by Gilbert to discontinue the operation of the business. Furthermore I accept the evidence of Dr Ewer that Gilbert was in no fit state to continue to conduct the business at that time and that the business was dependent on his active participation.

Sims Lockwood's report showed a company pre-tax profit as follows:

30th June 1993 $5,499 loss; 30th June 1994 $7,172 profit; 30th June 1995 $170 loss; 30th June 1996 $43 profit; 30th June 1997 $10,039 loss.

In those respective years the gross wages paid to Gilbert and Mrs Gilbert were as follows:

1993 $4,800; 1994 $26,700; 1995 $23,500; 1996 $5,500; 1997 $10,400.

In the year ended 30th June 1997, after payment of wages the company had made a loss of $10,039. If one added the wages back the company made a small profit of $361.

Mr Macklin conceded that since 1993 the combined salaries of Mr and Mrs Gilbert from the company were no higher than $26,700 and that was in the year ending 30th June 1994. In that year the company was involved in wholesaling motor vehicles only.

David Crase, a partner of Sims Lockwood, examined the financial accounts of BGM for the years ended 30th June 1993 to 30th June 1997. He also examined the taxation returns of Gilbert and the Group Certificates of Gilbert for the same period. He examined the Group Certificates of Mrs Gilbert for the years ended 30th June 1995 to 30th June 1997.

Gilbert received wages in those financial years in the following amounts:

1993 $4,800; 1994 $21,500; 1995 $19,000; 1996 $2,750; 1997 $5,200.

1993 Nil; 30th June 1994 (assumed) $5,200; 30th June 1995 $4,500; 30th June $2,750; 30th June 1997 $5,200.

1. That the plaintiffs had suffered no loss arising from the alleged defamation. 2. BGM was not a profitable business and accordingly has suffered no loss of profits. 3. Mr Gilbert was receiving negligible wages from the plaintiff company as BGM had long been unprofitable. 4. That payments banked by the corporate plaintiff from the Royal Sun Alliance since March 1998 being recovery of amounts pursuant to an insurance policy of in excess of $3,000 per month are considerably greater than the gross wages and at profit (in proprietor wages) of the corporate plaintiff over the past 6 years.

He concluded that the corporate plaintiff had suffered no loss of income.

In cross-examination, Mr Crase gave evidence that the most successful period of the business was when it was a wholesale business and once it turned to retailing he concluded that it became less viable. It was suggested to him that in the year ended 30th June 1998 by projecting forward, the ultimate result is that the company would have returned a profit. His conclusion was that he had insufficient information to make a meaningful judgment in respect of that proposition.

Mr Crase said that the business became less viable after it abandoned the wholesale part of the business and embarked upon retailing. He said that it was arguable from a profitability point of view that the business was better closed than open. He analysed the business for the period 30th June 1993 to 30th June 1997. He also considered the figures up to the close of business in 1997 and then extrapolated the figures to 30th June 1998. He concluded that the business suffered a reduction in performance which was due to its retail operation. He considered that it was at the lower end of the scale of viability when it was a wholesale business. He took into account payments made to Mr and Mrs Gilbert in arriving at his conclusions.

I accept the conclusions of Mr Crase. I found the evidence of Mr Macklin was of limited assistance as he had not conducted his own investigations and seems to have assumed figures in the Sims Lockwood reports to have been accurate.

I conclude that the retail business was not profitable. At the time BGM determined to close the business it was not profitable nor was it likely to be profitable in the future. Mr Crase was required to work with less than complete information because the plaintiffs had failed to provide sufficient records for a more detailed and complete analysis. I accept his conclusions that even on the material he was shown, the business was not profitable and was unlikely to become profitable in the future.

Mrs Gilbert said that prior to the 21st November 1997, Gilbert had decided to return to the wholesale business and he was in the process of gradually selling off stock. She anticipated that it would have taken about twelve months to quit the retail business.

I have taken into consideration the rental payments in respect of the Norwood premises. They do not alter my conclusion that the retail business was not viable. Even assuming the rental of those premises was removed as an expense of the retail business, I consider the retail business was still not sufficiently viable for it to continue.

I conclude that as a consequence of closing the retail business BGM has suffered no loss. If the business had been required to stand alone its closure was inevitable.

Gilbert claims damages for personal injury. It is submitted that he suffered a major depressive disorder and as a result he was unable to work in the car industry and the company was therefore required to close its doors. I have made allowance for the emotional distress suffered by Gilbert in the assessment of general damages. That has included Gilbert's injured feelings including hurt, anxiety and loss of self esteem.

I conclude that injury to health is compensatory (see: McRae v SA Telecasters (1976) 14 SASR 158 at 165). In Sattin v Nationwide News Pty Ltd (1996) 39 NSWLR 32 at p45, Levine J considered whether a claim for personal injury should be available in a defamation action. His Honour declined to strike out a plea for damages for personal injury arising out of defamation. He said :

"That leaves the question of whether or not the claim for damages for personal injury should be available in a defamation action. In this instance I am not persuaded to disallow any amendment to plead such in this case. Rigby v Mirror Newspapers Ltd (1963) 64 SR (NSW) 34: 81 WN (NSW) (Part 2) 38, per Manning J is some authority for the availability of such a claim. The matter has been considered in Brooke v Flinders University of South Australia (1987) 47 SASR 119 in a favourable way and in Mirror Newspapers Limited v Jools [1985] FCA 153; (1985) 5 FCR 507 an award for injury was upheld in the Federal Court. In Clough v Mirror Newspapers Ltd (Clarke J, 28 November 1983, unreported) evidence was admitted at the trial that the publication had caused an aggravation of a duodenal ulcer suffered by the plaintiff: see also my decision in Lardelli v Nationwide News Limited, (17 September 1993, unreported). It can hardly be said that the plaintiffs' assertion as a matter of law is unarguably bad."

In Mirror Newspaper Limited v Jools (1985) 65 ALR 175 Fox J, with whom two other members of the Court agreed, said at p177 :

"The plaintiff was entitled to damages for injury to his feelings and related effects on his health. He suffered from depression, as a result of the publication and had to seek psychiatric advice and assistance. His Honour subsumed these matters, in the passage cited above, under the heading of 'distress', but they were discussed in the course of his judgment."

Mr Swan submitted that a specific claim for personal injury consequent on defamation is not available. He submitted that there is no evidence at all that any injury the plaintiff suffered was consequent on any damage to his reputation. I will deal with the question of causation separately.

The first proposition of Mr Swan is that as a matter of law and principle personal injury is not a head of damage in respect of a claim in defamation. Mr Swan was unable to refer me to any specific authority supporting his submission. The authorities to which I have referred do not support Mr Swan's submission. There is no reason in principle why personal injury flowing from a defamation should not be compensable. If the injury is such that it can be said it was caused by the defamation loss and damage resulting therefrom should, in my view, be recoverable.

Gilbert claims damages for personal injury. Mr Swan submitted that there is no evidence that any injury that Gilbert suffered was consequent upon any damage to his reputation. He argued that there was not sufficient evidence that what occurred was consequent upon the broadcast. He submitted that Gilbert's distress was caused by the presence of Channel 7 at City Downtown Cars on 21st November 1997, and that any injury suffered by Gilbert occurred prior to the broadcast. He submitted that any damage had already occurred and was not consequent upon damage to Gilbert's reputation.

Causation was discussed in March v Stramare [1991] HCA 12; (1990-1991) 171 CLR 506. The majority of the High Court held that the issue of causation was a question of fact to be determined by common sense and experience. Toohey J at p524 summarised the position.

"In particular, I share the Chief Justice's view that the 'but for' or 'causa sine qua non' test is not and should not be a definitive test of causation where negligence is alleged. The limitations of the test, particularly where there are two or more acts or events, each of which would be sufficient to bring about the plaintiff's injury, or where a defendant seeks to rely upon a 'supervening cause' or 'novus actus interveniens' are apparent. Where negligence is in issue, causation is essentially a question of fact, in the sense explained by the Chief Justice, into which considerations of policy and value judgments necessarily enter."

Dr Ewer concluded that the broadcast was the relevant issue in precipitating the plaintiff's depression. I accept that Gilbert was extremely distressed and affected by the events of 21st November 1997, however it was the effect that the broadcast would have on his reputation that substantially caused his distress. I accept Dr Ewer's view that once the broadcast went to air that would have precipitated the depression.

I reject Mr Swan's submission that one can compartmentalise Gilbert's condition. I do not accept that the cause of Gilbert's illness and injury were the events of 21st November and not the subsequent broadcast. Applying a commonsense approach and accepting Dr Ewer's evidence, I find that Channel 7's conduct in broadcasting the programme was causative of Gilbert's depressive illness.

It is submitted on Gilbert's behalf that consequent upon the defamation he suffered a major depressive disorder and as a result he was unable to work and BGM therefore closed its business.

Gilbert gave evidence that he has not worked since the incident. I have recounted Gilbert's reaction to the broadcast earlier in these reasons.

Gilbert consulted Dr Ewer upon the referral of Dr Trigg. Dr Ewer had seen Gilbert in 1994. At that time he was suffering from distress, not a psychiatric illness.

He again saw him in December 1997. He concluded that Gilbert was severely depressed. He has been prescribed various antidepressants but he remains depressed. Dr Ewer considers that he will require ongoing counselling and medication. Dr Ewer is seeing him every three to four weeks and considers that will be continue for another six to twelve months.

Dr Ewer is of the opinion that the broadcast on Monday 24th November 1997 had a significant impact upon Gilbert. He accepts that the incident at the yard on 21st November had significantly affected Gilbert, but he concluded that the broadcast on 24th November was the relevant issue in precipitating the major depression from which he considers Gilbert is suffering. On 11th March 1998 Dr Ewer reported that in his opinion Gilbert was still suffering from major depression. He considered the prognosis good and considered a complete recovery should occur. At that time he was of the opinion that Gilbert was disabled and that he would be unfit for work for 4 to 8 weeks. His prognosis for Gilbert returning to the car business was not good.

On 19th June 1998 Dr Ewer reported that Gilbert was still severely depressed but that his condition would be greatly assisted by resolution of the litigation. Dr Ewer was pessimistic with regard to Gilbert's prospect of returning to the car industry. Dr Ewer said that even after resolution of the case Gilbert would be suffering depression which should, over a period, run its course.

Dr David Kutlaca, a psychiatrist, saw Gilbert on 26th May 1998. He concluded that Gilbert was not suffering from a significantly symptomatic major depressive disorder and he was not diagnostically anxious or psychotic. He considered that Gilbert had virtually recovered from a major depressive disorder and that he required a minimum of further psychiatric intervention. He thought the prognosis was entirely positive and that there would be no permanent psychiatric disability from the events.

Dr Kutlaca again reported on 2nd November 1998, after he had seen Gilbert on 29th October 1998. He concluded Gilbert's mental state had deteriorated slightly but was of the view that the resolution of the litigation represented the treatment of choice and that very substantial improvement would follow its resolution. He was of the opinion, as before, that the prognosis was good for recovery.

Dr Kutlaca accepted Dr Ewer's diagnosis of a major depressive disorder but he anticipated and expected a complete recovery. He was impressed by Gilbert as being a person who had a positive prognosis. He considered Gilbert could return to the wholesale car business and there was no real reason why in due course he could not be capable of returning to the business of retailing cars.

I accept Dr Ewer's diagnosis that Gilbert is suffering from major depression and that he continues to suffer from the illness and will require significant treatment over a period of approximately twelve months. I consider that over that period and particularly once the litigation has been finalised, Gilbert will respond and is likely to make a full recovery.

I do not accept that given Gilbert's positive personality and outgoing character that with adequate counselling he will not be capable of returning to some form of full time employment in the car industry. I accept Dr Ewer's evidence that he may not be able to return to retailing at present, but I do not accept that that will be permanent. I prefer Dr Kutlaca's opinion that there is no reason why he could not immediately return to the wholesale section of the car industry and in due course if he wished, the retail area. Gilbert was well regarded in the wholesale industry and especially after resolution of the litigation there is no reason why he should not fully recover. The character evidence called on behalf of Gilbert indicated to me that his good name in the industry will be revived and he should not be significantly affected, particularly after judgment in this litigation.

I conclude that given time Gilbert will be able to return to retailing if he is so minded. I am satisfied that for about six months after the incident Gilbert would have been incapable of any work. However, after that period he had the capacity to earn income in other areas albeit at a reduced capacity.

Over the period 30th June 1993 to 30th June 1997 Gilbert's annual gross salary had varied between $2,750 and $21,500. In 1996 and 1997 it was less than it had been in the earlier years, other than 1993. I do not consider that the position would have much improved in 1998 and the prospects of improvement in the future in the retailing area was remote. Mrs Gilbert made the point that Gilbert was intending to move out of the retail business in any event.

In assessing damages I consider that from 21st November 1997 for approximately six months Gilbert was unable to work. I consider from then until December 1998 when judgment was reserved, he may have been able to work outside the car industry, however his prospects of obtaining employment or conducting a successful business outside the car industry was substantially reduced, as his only experience was in the car industry.

I consider that his incapacity to return to the retail car industry will continue for approximately twelve months after resolution of this litigation. In my opinion, his condition should improve significantly after resolution of the litigation and he should be capable of returning to work in the wholesale area within a few months after the final resolution of the litigation.

As to loss of earnings I assess past loss from 24th November 1997 to 19th December 1998 at $5,500. I assess future economic loss at $4,000.

Gilbert has received payments pursuant to an Income Protection Insurance policy with Sun Alliance Life Assurance. The policy provides for monthly benefits for disability caused by sickness.

In a case where a defendant is liable to compensate a plaintiff for personal injury incurred as a result of the defendant's negligent act, or in this case defamation, it is clear that the defendant cannot treat a payment paid under an insurance policy taken out by the plaintiff as operating in relief of its liability to compensate the plaintiff for loss of income (see National Insurance Company of New Zealand v Espagne (1961) 105 CLR 562 at 573; also Nagy v Masters Dairy Limited [1992] FCA 41; (1997) 105 ALR 301). In Espagne's case Windeyer J expressed the position as that the plaintiff's loss is not to be mitigated in payments from another source if they are or are to be received notwithstanding any rights of action the plaintiff may have.

The payments fall within the criteria expressed by the High Court as not diminishing the plaintiff's claim. In the assessment of damages, I have therefore taken no account of payments pursuant to the disability policy.

In Uren v John Fairfax and Sons Pty Limited [1966] HCA 40; (1967-68) 117 CLR 118 the distinction between exemplary and aggravated damages was made clear by the High Court. Taylor J at p129-130 said :

"It is, perhaps, desirable to point out that there had been a degree of confusion between 'aggravated' and 'exemplary' damages and sufficient attention has not, in the past, been given to the distinction between these two concepts. The former are, of course, given by way of compensation to the plaintiff, though frequently intangible, resulting from the circumstances and manner of the defendant's wrongdoing. On the other hand, exemplary damages are awarded as Lord Devlin said in Rookes v Barnard (1964) AC at 1221, to 'punish and deter' the wrongdoer though, in many cases, the same set of circumstances might well justify either an award of exemplary or aggravated damages".

"Upon full consideration, I do not think that the decision of the House of Lords should force this Court to conclude that the law here is other than what it has for so long been taken to be, viz, that where an action is based upon a personal wrong and the defendant has acted arrogantly, mindful only of its own interests and, to use the phrase of Knox CJ, 'in contumelious disregard' of the rights of the plaintiff, 'damages may be given of a vindictive and uncertain kind, not merely to repay the plaintiff for temporal loss but to punish the defendant in an exemplary manner' for his outrageous conduct (see Finlay v Chirney (1888) 20 QBD at p504). In Australia, no-one could say that, if the vigorous assertion and application of this rule would have curbed the malice and arrogance of some defamatory publications, it would not serve a useful purpose in vindicating the strength of that part of the law which protects people's reputations, and would afford that protection without encroaching in any way upon the liberty of the Press. A vigilant concern with freedom of speech is in no way inconsistent with the recognition that malicious and callous disregard for a man's reputation deserves discouragement: cf New York Times Company v Sullivan (1964) 11 Law.Ed.2d e 686, head note 20."

Windeyer J at p154, dealing with the evidence necessary to establish the head of damage said:

"There must be evidence on which the jury could find that there was, at least, a 'conscious wrongdoing in contumelious disregard of another's rights'. I select that particular phrase out of many, because it has been used more than once in this court."

His Honour went on to say that the conduct of the defendant must be such as to merit punishment.

"Punishment is called for only if he has caused injury by using his power 'in contumelious disregard of another's rights' to use the phrase of Knox CJ in Whitfield's case (1920) 29 CLR at p77."

In Gray v Motor Accident Commission (1998) 73 ALJR 45, the High Court considered the distinction between aggravated and exemplary damages. The majority of Gleeson CJ, McHugh, Gummow and Hayne JJ, observed that the distinction must be borne in mind and they referred to the judgment of Windeyer J in Uren's case in which His Honour described the difference as being (at page 46) :

"That aggravated damages are given to compensate the plaintiff when the harm done to him by wrongful act was aggravated by the manner in which the act was done : exemplary damages, on the other hand, are intended to punish the defendant, and presumably to serve one or more of the objects of punishment - moral retribution or deterrence."

The Court, recognised that the power to award exemplary damages exists, and not withstanding that from time to time there appear to be difficulties that attend the awarding of exemplary damages, courts should not be prevented or discouraged from making such awards in appropriate cases.

I accept that exemplary damages are awarded rarely, because they are punitive in nature. They can be seen as granting a "windfall" award to a plaintiff. Despite this, I consider there are circumstances in this case which justify the making of such an award.

"Exemplary damages may be recovered whatever the subjective intent of the tortfeasor if, objectively, conduct involved was high-handed, calling for curial disapprobation, addressed not only to the tortfeasor but to the world. "

The observations of Kirby J are even more pertinent in a claim alleging defamation where it is established that the publisher acted in a high-handed manner with disregard for the plaintiff's position, denying the plaintiff an adequate opportunity to answer allegations of dishonesty and impropriety.

"Aggravated damages are given for conduct which shocks the plaintiff and hurts his or her feelings. Exemplary damages are awarded for conduct which shocks the tribunal of fact, representing the community."

He observed that there may be some overlap. I acknowledge the necessity to ensure, in determining any award, that I should avoid any overlapping of the two areas of damage.

I consider that Channel 7 acted in a most high handed fashion. Pangallo, in accepting Trevor Clark's version of events without making any further enquiry, and then confronting Gilbert with a camera and microphone, acted in an unreasonable way. Pangallo did not give Gilbert a sufficient or proper opportunity to respond, although he claimed that he had done so. Gilbert was confronted by Pangallo in a most aggressive manner. The situation in which Gilbert found himself was both threatening and intimidating. Shortly before Pangallo arrived on the scene, Gilbert had been confronted by Trevor Clark, who had acted in an emotive and an hysterical way. Pangallo and the Channel 7 crew approached Gilbert with an attitude that he was a dishonest person and that they were there to protect the rights of Trevor Clark who they perceived as the injured party.

Up to the day of the incident, the approach of employees of Channel 7 was that Gilbert was dishonest, Clark was an innocent victim of a "shonk" and they intended to expose Gilbert's conduct. They spoke of Gilbert in a derogatory way. At the car yard, whilst they waited for him, they made sarcastic references to his hair. Little or no concern was expressed for Gilbert. No consideration was given to allow him an adequate time to respond to serious allegations. In my view Pangallo had determined that Gilbert was a dishonest person and he was determined to portray that in the programme that went to air on 24th November 1997. When Pangallo received information which may have been contrary to the story that was to be portrayed, he and Channel 7 ignored it. When Mark Clark telephoned on the evening of the 21st November 1997, pretending to be Gilbert,. Pangallo chose to ignore what was put to him.

I am confirmed in my views about Channel 7's attitude towards Gilbert by their subsequent conduct. The letter from Andersons was ignored. No attempt was made to contact Mr Norman of Andersons, or Gilbert prior to the broadcast going to air. As far as Channel 7 were concerned Gilbert had had his opportunity on 21st November 1997 and Channel 7 was not interested in further hearing from Gilbert or his solicitors.

There was in my judgment a contumelious disregard of Gilbert's rights and in particular his right to properly defend himself. Channel 7 were put on notice by Gilbert's solicitors and chose to ignore the letter. They chose to proceed with the broadcast without hearing from Gilbert or his solicitors. Pangallo had been made aware that the story to be aired did not fairly allow Gilbert to explain his position. In my view it is appropriate to award an amount for exemplary damages in addition to the order for general damages. In arriving at the amount, I am mindful of the requirement that I must not overlap any award of exemplary damages with the award for general damages, which includes an amount of aggravated damages. The award for exemplary damages is by way of indicating to Channel 7 that conduct of the kind I have described, is unacceptable and worthy of an additional order of damages. I award of $20,000 by way of exemplary damages.

In allowing interest for past economic loss, I have used 6% as an appropriate rate. In respect of general damages, I have allowed 4% as the rate. As I have indicated, the effect of adverse publicity on television is immediate. The plaintiff Gilbert suffered most of the distress almost immediately. I have therefore calculated interest on the basis that 75% of the damage was suffered before trial. I have calculated interest to the date of judgment. I assess interest at $4,400.

Special damages have been agreed at $3,527.80. I allow $2,500 for future medical and other expenses.

I summarise the damages in respect of the second plaintiff.

General damages including aggravated damages $100,000.00

As to the first plaintiff, I find that the promotion, broadcast and follow-up were defamatory but for the reasons I have given, I award nominal damages of one dollar, and there will be judgment in that amount.

As to the second plaintiff, there will be judgment in the sum of $139,927.80,

Film of Pangallo and one Trevor Clark at Gilbert Motors yard.

Film of engine of a Ford Fairmont Ghia Motor Vehicle SA UPY 889 being a car purchased by Trevor Clark from Gilbert Motors ("the car").

Voice over : On Today Tonight, what's a used car warranty worth?"

Voice over "The Adelaide car yard caught out on customer service".

Pangallo "Because if you don't we'll come back after you".

Picture flashes to shot of motor with the bonnet open.

Picture shows Mark Clark around desk at Downtown City Cars heading to the door.

Picture shows office, Trevor Clark butting out a cigarette in the office, and Mark Clark sliding the door closed followed by a close up of the RAA report with a tick in the box marked fair and no notation or mark in the box marked poor.

Cut to scene in service bay, Gilbert leaning against service bay hoist.

Film of entry into repairers premises Caltex Service Station South Road Marleston.

Pangallo pursuing Gilbert from service station towards his car.

Pangallo pursuing Gilbert towards Gilbert's ute. Pangallo steps in front of Gilbert.

McClusky : "Buying a used car is always a bit of a gamble. But a warranty is supposed to offer new owners a guarantee that should the worst happen they will be covered but it seems that how and when a dealer chooses to honour that warranty can be a matter of debate. Trevor Clark is a battling father of three who spent $11 000 buying what he thought would be a terrific family car. Only to discover he'd bought a lemon. The car needs major repair work but a frustrated Trevor is now waiting for the dealer to make good his promises to fix the problems before the warranty runs out.

Trevor : "This is one of the reasons why it is a lemon. The window won't wind up and its been like this since the day I purchased the vehicle. This is another major problem, it goes through two litres of oil per week."

Voice over : "Trevor Clark has every reason to believe he's bought a lemon."

Trevor Clark : "The gear box is another thing that is faulty in this vehicle and I've been asking for that to be repaired as well."

Voice over : "He paid $11 000 for this eight year old Ford Fairmont Ghia from this Adelaide car yard."

Trevor " He told me when I bought the car that the car was in very good condition. They'd done the cylinder head up on the vehicle and he's said the motor and everything's A1."

Trevor Clark : "A1 - huh, I wouldn't give it an A3. It's s*expletive deleted* (remainder of the word shitty deleted). I'd go and give it to a wrecking yard in this condition. Ya know I've had nothing but troubles."

Voice over : "Here is the salesman who did the deal. Trevor only knows him as Mark."

Voice over : "And this is the after sales service that he got when he demanded serious problems identified in an inspection carried out by the RAA be fixed."

Trevor Clark : "Every time I take my car back down for repairs they don't warranty the repairs. Or they do half, one or two jobs. Leave half a dozen other jobs to be done."

Voice over : "Trevor, how long has this been going for?"

Trevor Clark : "This has been going on since day one when I bought the vehicle, approximately about six weeks ago."

Voice over : "James Wigzell knows all about Trevor's car and his warranty dilemma, he's had the same problems with the same lemon bought from a different car yard three years ago."

Wigzell : "The car was worth, really nothing. There was a good body and that was about it. That was all it had going for it. Engine wise it was worth nothing, there was a lot of work needing to be done on it. Transmission was gone. The gas unit was shot."

Voice over : "Fed up and out of pocket through fighting for his rights, James gave up allowing the car to be repossessed."

Wigzell : "Saw the car in the car yard there and went in and just out of curiosity just had a look at the car and they had a price tag then of 15,9 something like that and um asked him a few questions. He was eager to give me a test drive, but when we went to start up the car, the car didn't start which it didn't when I had it."

Voice over : "Now Trevor is finding it hard to get City Downtown and its owner Robert John Gilbert to fix his car."

Trevor Clark : (in a loud voice) "When you want my car for the last six weeks of business."

Background voice (Pangallo) : "Trevor calm down, Trevor calm down."

Trevor Clark : (in a loud voice) "He will not fix it. Why?"

Voice over continues : "Cars bought for more than $6 000 carry a three month or 5000km warranty. Trevor's still has about a month or 500km to run but he's angry and frustrated because the car yard has so far failed to act on the major repairs."

Trevor Clark : "I go home and I find me wife on the lounge in tears. Because all we want to do is get our car fixed under warranty, and its getting very frustrating for me. We're at the point, I can't take any more of it. All I want is the car fixed."

Voice over : "Motor Trades Associations' Dennis Baldock says car yards can not avoid their duty to repair even after the warranty period expires."

Baldock : "If an item is reported to a car dealer, the car dealer is expected to attend to that item to a proper trade standard. If he doesn't the warranty is still extended anyhow, because he still has to address those problems."

Voice over : "After numerous unsuccessful attempts to get action Trevor came to us for help. We went with him when Mr Gilbert arranged, yet again, for a repairer to look at his car. The repairer here is not associated with Mr Gilbert's car yard nor is he responsible or obligated to do any of the work unless he's authorised in this case by Mr Gilbert."

Trevor Clark : "He just wouldn't talk to me . I ask him when are ya gonna fix my car? He said just go away , go away."

Voice over : "But as tearful Trevor has come to expect, it was yet another wasted exercise."

Pangallo : "Are you going to fix the car to his satisfaction?"

Pangallo : "When are you going to fix his car, Mr..."

Background : "We then went with Trevor to Mr Gilbert's car yard."

Pangallo : "But you'll give us an assurance that you will fix the rings on the car where it is required."

Gilbert : "I am not giving you any assurance, I'm giving you guys anything. I'm telling him."

Pangallo : "Well we'll leave if you carry it out but if you don't we'll come back after you."

Background voice : "Commissioner for Business and Consumer Affairs, Hamish Gilmore, says there is much that his department can do for car buyers like Trevor."

Gilmore : "We try and broker a solution between the two parties, and then that becomes a lawfully binding agreement, and we get both parties to sign that agreement and then that agreement can be enforced by the courts if that's necessary."

Voice over : "Consumer Affairs will investigate what appears to be a breach of regulations by the car yard in incorrectly advertising the wrong name and dealer licence details. In the meantime Mr Gilbert has again booked the car for repairs later this week and we intend holding Mr Gilbert to his promise."

Trevor Clark : "Now they claim they are going to fix the car cause I got you guys involved in it. If I hadn't got you guys involved this would carry on and on and on."

Film of Falcon motor vehicle, Trevor Clark and Gilbert.

Voice over : Still we have some good news on two recent stories. Remember Trevor Clark's second hand Ford lemon. Well car dealer Robert John Gilbert's finally kept his word, and his warranty obligation, the car is being fixed by a reputable repairer and should be back on the road later this week.

Second Hand Motor Vehicles Act 1975

(Second Hand Motor Vehicles Act 1995

Bob Gilbert Motors P/L & Anor v SA Telecasters Ltd No. DCCIV-98-84 Judgment No. D38 [1999] SADC 38 (16 March 1999)

Gatley, 9th Edition , referred to.
March v Stramare [1991] HCA 12; (1990-1991) 171 CLR 506;
Chakravarti v Advertiser Newspapers Limited 14 October 1998 S6901;
National Insurance Company of New Zealand v Espagne (1961) 105 CLR 562;
Nagy v Masters Dairy Limited [1992] FCA 41; (1997) 105 ALR 301;
Uren v John Fairfax and Sons Pty Ltd [1966] HCA 40; (1967-68) 117 CLR 118;
Gray v Motor Accident Commission (1998) 73 ALJR 45, applied.
Slayter v The Daily Telegraph Newspapers Company Limited [1908] HCA 22; (1908) 6 CLR 1;
Keogh v The Incorporated Dental Hospital of Ireland (1910) 2 IR Reports 577;
Farquhar v Bottom (1980) 2 NSWLR 380;
Reader's Digest Services v Lamb [1982] HCA 4; (1982) 150 CLR 500;
Sutherland v Stokes (1925) AC 47;
Bellino v The Australian Broadcasting Corporation [1996] HCA 47; (1996) 185 CLR 183;
Rocca v Manhire (1992) 57 SASR 224;
Horrocks v Low (1975) AC 135;
Mirror Newspapers Limited v Jools (1986) 68 ALR 174;
Rookes v Barnard [1964] UKHL 1; (1964) AC 1129;
Waterhouse v Station 2 GB Pty Ltd (1988) 1 NSWLR 58;
McCrae v SA Telecasters (1976) 14 SASR 158;
Sattin v Nationwide News Pty Ltd (1996) 39 NSWLR 32, considered.

In determining whether any of the publications were defamatory I must consider whether the matter complained of is capable of conveying to the ordinary reasonable viewer the imputations relied upon by the plaintiffs. I must proceed upon the basis that the ordinary reasonable viewer is a person of fair and average intelligence who is neither perverse nor suspicious of mind (see: Slatyer v The Daily Telegraph Newspapers Company Limited [1908] HCA 22; (1908) 6 CLR 1 at 7_; Keogh v The Incorporated Dental Hospital of Ireland_ (1910) 2 IR Reports 577 at 586; Farquhar v Bottom (1980) 2 NSWLR 380 at 385. In order for an imputation to be defamatory it must tend to damage the plaintiff's reputation or lead to his or her exclusion from society. An imputation will be defamatory if tends to produce any adverse reaction in the hypothetical audience of ordinary reasonable people. (see Readers Digest Services v Lamb [1982] HCA 4; (1982) 150 CLR 500).

Bob Gilbert Motors P/L & Anor v SA Telecasters Ltd No. DCCIV-98-84 Judgment No. D38 [1999] SADC 38

At a glance

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Judgment (190 paragraphs)

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Cases Cited (18)

Bob Gilbert Motors P/L & Anor v SA Telecasters Ltd No. DCCIV-98-84 Judgment No. D38 [1999] SADC 38 (16 March 1999)