Calwell v Ipec Australia Ltd

In this action Mr. Arthur Calwell, the plaintiff, who died after the trial, sued the respondent for defamation in the Supreme Court of New South Wales in respect of an article published in the respondent's weekly newspaper The Sunday Review in its issue of 25th April 1971. The jury returned a verdict for the plaintiff in the amount of $18,000. On appeal, the Court of Appeal set aside the verdict and judgment and substituted a verdict and judgment for the respondent. It is conceded that the appellant, the plaintiff's executrix, in order to profit from the appeal to this Court against that decision, must succeed in having the jury's verdict restored - a new trial would be of no avail in view of the principle expressed in the maxim actio personalis moritur cum persona. This is by the way, for I have come to the firm conclusion that the attack made upon the grounds advanced by the Court of Appeal for its decision cannot be sustained.

The judgment of Reynolds J.A. in the Court of Appeal sets out the article on which the plaintiff sued [29] . Its literary qualities are not so enduring as to warrant its repetition. It was published at a time when the Australian Labor Party was in opposition in the federal Parliament and when Mr. E. G. Whitlam was leader of the party and of the Opposition. He had previously been deputy leader when the plaintiff was leader. At the time of the publication the Government had served approximately one-half of the three-year term for which it was elected. In the normal course the next election for the House of Representatives was to take place at the end of 1972.

The message which the article appears to convey is that the plaintiff and several other members formed a small group of old stalwarts in the parliamentary party, that though they subscribed or professed to subscribe to traditional and received socialist doctrine, they were in truth old-fashioned and conservative in their attitudes and that they were conducting a rearguard action against progressive and modern socialist policies adopted by the party. The article said of them:

More and more, they are devoting their time to attacking party policy, as interpreted by the leadership, and to attacking the leadership itself. Far from being a grand old conscience, they have deteriorated into a narrow and embittered gerontocracy, whose actions seem motivated by almost anything except the desire to enhance the party's electoral prospects. It went on to say of the plaintiff: Take Arthur himself. In the last year and a half he has rarely been seen in parliament but, when he is there, his contributions have been devoted mainly to increasingly overt attacks on Whitlam.

Typical was that of May 6 last year, when he spoke of the late Eddie Ward's "undeserved defeat" for the deputy leadership in 1960: "This was the greatest tragedy for the labor party had Ward won the ALP would most certainly have won the 1961 election."

It's a point of view shared by very few political commentators, and it is just possible that the fact that the man who beat Eddie was Whitlam may have colored Arthur's judgment.

The article then referred to recent actions of the plaintiff which revealed him as friendly and well disposed to a well-known member of the Government party, as hostile to Mr. Whitlam and other persons in the Labor party and as failing to announce his support for one or more aspects of accepted party policy. Actions of other members of the group were canvassed in a similar vein. These actions indicated or tended to indicate that loyalty to declared party policy and to the leader was not a notable characteristic of the plaintiff and other members of the group.

This, then, is the grand old conscience Left. The government claims to admire them: the government would be mad not to, after they have helped to keep it in power for 21 years.

It is perhaps the final aspect of the old left's conservatism that it appears to be doing its best to make sure this situation continues. From an ALP point of view, they are not helpful.

Although no innuendo was pleaded, the plaintiff's case at the trial was conducted on the footing that the article represented him to be lacking in loyalty to his leader and to his party. The respondent denied that the article was defamatory and relied upon a defence of fair comment at law, a defence of fair comment under s. 15(b) of the Defamation Act, 1958 N.S.W. and pleas of qualified privilege under the Act, that is, s. 17(c) - the fifth plea, s. 17(e) - the sixth plea, s. 17(h) - the eighth plea. The seventh plea was also based on s. 17(e) but it was withdrawn at the trial. The plaintiff joined the issue on the defendant's pleas and pleaded that the defamatory matter was not published in good faith.

It is a lawful excuse for the publication of defamatory matter if the publication is made in good faith -

(c) for the protection of the interests of the person making the publication, or of some other person, or for the public good;

(e) for the purpose of giving information to the person to whom it is made with respect to some subject as to which that person has, or is believed, on reasonable grounds, by the person making the publication to have, such an interest in knowing the truth as to make his conduct in making the publication reasonable under the circumstances;

(h) in the course of, or for the purposes of, the discussion of some subject of public interest, the public discussion of which is for the public benefit and if, so far as the defamatory matter consists of comment, the comment is fair.

For the purposes of this section, a publication is said to be made in good faith if the matter published is relevant to the matters the existence of which may excuse the publication in good faith of defamatory matter; if the manner and extent of the publication do not exceed what is reasonably sufficient for the occasion; and if the person by whom it is made is not actuated by ill-will to the person defamed, or by any other improper motive, and does not believe the defamatory matter to be untrue.

It is convenient now to set out the pleas of qualified privilege based on s. 17(c) and (e). They were:

5. And for a fifth plea the defendant says that the matter complained of was published by the defendant for the public good.

6. And for a sixth plea the defendant says that the matter complained of was published by the defendant for the purpose of giving information to the persons to whom it was made with respect to a subject as to which those persons had such an interest in knowing the truth as to make the defendant's conduct in making the publication reasonable under the circumstances.

The learned trial judge ruled that the publication was capable of conveying the defamatory imputation that the plaintiff lacked loyalty. It was left for the jury to determine whether in fact the article bore this imputation. The trial judge also ruled that there was evidence on which the jury could conclude that the publication was not made in good faith and that the absence of good faith would destroy the defence pleaded under s. 15(b) as well as the defence pleaded under s. 17. Accordingly, it was left to the jury to determine whether the publication was made in good faith - a negative answer to this question entailing a verdict favourable to the plaintiff on the statutory defences.

His Honour went on to rule that in the circumstances the publication could not in law be regarded as a publication for the public good and he therefore took away from the jury the fifth plea. However, he refrained from ruling on the elements contained in the sixth plea and left them to the jury.

The Court of Appeal held unanimously that there was no evidence that the publication was not made in good faith and that accordingly the issue of good faith should not have been left to the jury. In addition the Court of Appeal held that the trial judge should have determined for himself as matters of law the elements on which the sixth plea was based and that, had he done so, there should have been a verdict for the respondent on this plea [30] .

At common law it is well accepted that the question whether an occasion is the subject of qualified privilege or not is for the judge to determine as a matter of law, it being for the jury to determine any disputed issues of fact on the resolution of which the ultimate question of law may depend (Watt v. Longsdon [31] ; Telegraph Newspaper Co. Ltd. v. Bedford [1] ). On the other hand, at common law it is for the jury to decide whether the publication was made otherwise than in good faith, provided that there is evidence on which they could reasonably come to a conclusion favourable to the plaintiff. The burden of proof of the absence of good faith is placed by the Act, as it was by the general law, on the plaintiff (s. 18). From this it sufficiently appears that the issue of good faith is an issue of fact for the jury.

1. [1930] 1 K.B. 130, at p. 153. 2. (1934) 50 C.L.R. 632, at pp. 646, 657.

However, apart from s. 18 and s. 19 which provides that the question whether defamatory matter is relevant to any other matter and the question whether the public discussion of any subject is for the public benefit, are questions of fact, the Act contains no provision defining the respective roles of judge and jury in relation to defences of qualified privilege. The absence of a provision of this kind led four members of this Court in Bedford's Case [2] to conclude that it was for the judge to determine whether an occasion was privileged under s. 377(3) of the Code (the counterpart of s. 17(c)) [3] . This conclusion was based on the analogous approach made by the common law to the problem and to the recognition by the courts that the question whether an occasion is privileged is one which involves important considerations of public and social policy traditionally refined and determined by the judge. Although the observations of Starke and Evatt JJ. were more evidently directed to s. 377(3), in my view they applied as well to s. 377(5) - the counterpart of s. 17(e).

1. (1934) 50 C.L.R. 632. 2. (1934) 50 C.L.R., at pp. 647, 658.

The approach taken by Starke and Evatt JJ. has been questioned (see "The Defamation Act 1958 and the Common Law" by Mr. Justice Walsh published by the Council for Advanced Legal Studies (N.S.W.)), principally on the ground that it drew too heavily on the antecedent common law when the task of the court was to interpret the statute free from any presumption that it was intended to re-enact the pre-existing law. For my part, I agree that the Act is to be interpreted according to its language without any such presumption in mind (see Sungravure Pty. Ltd. v. Middle East Airlines Airliban SAL [4] ). However, when attention is given to the terms of the Act they do not in my view throw any significant light on this problem - see the discussion of the question by Walsh J.A. in Justin v. Associated Newspapers Ltd. [5] .

1. (1975) 134 C.L.R. 1, at pp. 20-23. 2. (1966) 86 W.N. (Pt 1) (N.S.W.) 17, at pp. 33-34.

True it is, as his Honour then observed, that s. 17 refers to publication of defamatory matter and not to the occasions on which defamatory matter is published (cf. the firm distinction which the common law draws between a privileged occasion and a privileged communication - see Pullman v. Walter Hill & Co. Ltd. [6] , and Guise v. Kouvelis [7] ). However, to my mind the form in which the provision is expressed is not sufficient to support the conclusion that fulfilment of the prescribed conditions is necessarily an issue of fact for the jury. His Honour also pointed out that the issue of relevance may arise twice, first, as an element in the question whether the case falls within one of the categories mentioned in s. 17 and, secondly, as an element in the statutory concept of good faith. Again, in my view the considerations to which his Honour referred do not justify the conclusion as a matter of statutory interpretation that it is for the jury to determine whether the conditions prescribed in s. 17(a) to (h) are fulfilled. In this situation it is legitimate to have regard to the approach of the common law to a similar question and to conclude that it was made applicable under the Act. For these reasons I consider that what Starke and Evatt JJ. said upon the question in Bedford's Case [8] was correct. I would add that what was then said appears to have been an essential part of the reasoning which led to the Court's conclusion and therefore to have binding effect.

1. [1891] 1 Q.B. 524, at p. 529. 2. (1947) 74 C.L.R. 102, at p. 117. 3. (1934) 50 C.L.R. 632.

This view was adopted by the Court of Appeal in Justin's Case [9] and Bridges v. Australian Consolidated Press Ltd. [10] . In these cases the members of the Court of Appeal, in particular Walsh and Jacobs JJ.A., rejected the notion that a distinction should be drawn between s. 17(c) and the other categories of privileged communication referred to in the section and held, rightly in my opinion, that it is always a question of law for the judge to determine whether the conditions prescribed by the various paragraphs of s. 17 are fulfilled, subject to the jury deciding any disputed issues of fact on which the resolution of the ultimate question may depend.

1. (1966) 86 W.N. (Pt 1) (N.S.W.) 17. 2. (1967) 70 S.R. (N.S.W.) 52.

At the trial Collins J. surrendered the s. 17(e) defence to the jury. It was not contested in argument that his Honour did leave the ultimate question under the sixth plea to the jury, a course which was at variance with what had been decided in Bedford's Case [8] and with the two decisions of the Court of Appeal to which I have referred.

In view of the concession which has been made, this conclusion is enough to dispose of the appeal unless it appears that the ultimate question of law arising under the sixth plea must be answered favourably to the appellant, there being no disputed issues of fact on which this ultimate question depends. On this aspect of the case I agree with the Court of Appeal that his Honour should have determined the question in favour of the respondent, subject to the question of good faith which yet remains to be considered. The purpose of the respondent in publishing the article, as appears from its terms and from its presence in the newspaper, was to give information to its readers as members of the public. The subject in question was the attitude of the plaintiff and the other members of the group identified in the article to the party leader and to the modern socialist policies adopted by the party. It is beyond question, having regard to the national importance of the subject, including as it did the attitude of a former party leader to the then party leader and the policies of his party, that the readers of the newspaper had such an interest in knowing the truth as to make the respondent's conduct in making the publication reasonable in the circumstances.

Lack of relevance between the defamatory matter published by the respondent and the head of privilege for which s. 17(e) makes provision was not relied upon either to support the conclusion that the conditions prescribed by s. 17(e) were not fulfilled or as evidence of lack of good faith. In attempting to support the jury's verdict Mr. Evatt for the appellant asserted that there was material establishing or tending to establish ill will on the part of the respondent. The material relied on was: (1) the terms of the article itself; (2) an open letter to the plaintiff published in the same issue of The Sunday Review written by a correspondent and referring to the plaintiff in hostile and critical terms.

Section 17 provides that a publication is said to be made in good faith if it fulfils three qualifications - (1) if the matter published is relevant to the matters the existence of which may excuse the publication in good faith of defamatory matter; (2) if the manner and extent of the publication did not exceed what is reasonably sufficient for the occasion; (3) if the person by whom it is made is not actuated by ill will to the person defamed or by any other improper motive and does not believe the defamatory matter to be untrue.

The trial judge evidently considered that the publication fulfilled the first and second qualifications for in directing the jury on the issue of good faith he referred only to the third qualification and then in terms which do not precisely conform with the language of the Act. The trial judge's summing up contained the following observation:

In any event I do not think that this is a case of where the article used violent or excessively strong language. The article is really couched in the language of mockery or ridicule and I think it is open to the jury to say that there is evidence which shows ill will and malice.

If the first sentence in this passage is correct, as I think it was, it should have led his Honour to a conclusion in terms diametrically opposed to the facts set out in the second sentence. At common law it has been repeatedly said that a court should not be quick to find evidence of malice in the terms of defamatory material published on a privileged occasion because so to do would restrict considerably, if not defeat, the protection which the law confers on privileged communications (see Laughton v. Bishop of Sodor and Man [11] ; Adam v. Ward [12] ). It has been said that where the words are utterly disproportionate to the facts this amounts to evidence of malice (Spill v. Maule [13] ), presumably on the footing that the extremity and exaggeration of the language is explicable only by reference to the existence of ill will in the defendant, but it does not suggest that a defendant is confined to saying what is strictly necessary to the occasion. The same comments may be made about the statutory concept of good faith to the extent to which it rests on ill will or other improper motive.

1. (1872) L.R. 4 P.C. 495. 2. [1917] A.C. 309. 3. (1869) L.R. 4 Ex. 232.

None the less it is impossible to formulate a precise and illuminating criterion which will separate those publications which furnish intrinsic evidence of ill will from those which do not. Whether in a given case there is an inference reasonably open that the defendant was actuated by ill will or some other improper motive will depend on the extravagance of the allegation or the language in which it is expressed, having regard to the facts. In each instance it is a judgment made in the light of the impression created upon the mind by what has been written, an impression which will not necessarily depend on a close textual analysis of the words.

For my part, I cannot think that the article under consideration in this case provided evidence that the respondent was actuated by ill will. It reviewed the conduct and attitudes of the plaintiff and his political associates; it attributed to them a lack of loyalty to the leader and to certain policies adopted by the party; and it canvassed certain incidents in which the plaintiff participated in a light which would be regarded by many as unfavourable to him. But in all this I fail to see evidence of lack of good faith in the author or the publisher. The plaintiff's stature in the political life of this country was such as to make the disclosure of this information a matter of public interest and importance - yet there is nothing so extraordinary in the information provided as to suggest to my mind that publication of the article was actuated by ill will or some other improper motive. Nor can it be said that the manner in which the information is expressed could ground any such inference. In short it is a typical exercise in political journalism, written in a fashion intended to attract the attention of the reader, blunt rather than subtle in style.

No doubt, as counsel for the appellant sternly warned us, there is a danger that too much emphasis on the importance of freedom of discussion of public affairs and of the personalities who participate in them may lead to a diminution in the protection which the law affords to those engaged in public life, as well as to private citizens, from unlawful defamation. But, as I have pointed out, the Court should be cautious before it deprives a defendant of the qualified privilege conferred upon him by the Act by finding in the terms of what he has published intrinsic evidence of ill will.

The other material relied upon as affording evidence of want of good faith was the letter printed on p. 815 from Mr. Brian Goodhind, secretary of the South Australian Young Labor Association, addressed "Dear Mr. Calwell" and which commenced with the statement "You did a fine job of work last week for the anti-White Australia faction by spreading your paranoia and illogicality over a full half-page of The Sunday Review". The letter was evidently written in reply to an article written by the plaintiff in the previous issue of the respondent's newspaper and, as its opening sentence indicates, it was couched in strong language. Whatever this may say as to the motives which inspired Mr. Goodhind, and I cannot think that it says very much unless the letter is related to what was stated in the article to which it was a reply, it tells us nothing about the motives of the respondent in publishing the article on which the plaintiff sued. There was no evidence to suggest that the respondent had sought or procured the writing of the letter by Mr. Goodhind, and we are left, therefore, with the inference that it was published by the respondent in the ordinary course of its newspaper business as a letter from a correspondent on a matter of topical interest in reply to an article appearing in the previous issue.

In my opinion, therefore, there was no evidence of absence of good faith to be considered by the jury and it follows on this ground also that the verdict for the plaintiff was correctly set aside.

I agree that the appeal should be dismissed and I agree with the reasons expressed by Mason J. There is little that I wish to add for myself. I see no reason to depart from the views which I have previously expressed on a number of occasions that the defences allowed by s. 17 of the Defamation Act, 1958 N.S.W. were defences which raised questions of law which fell to be determined by the trial judge and that there should only be left to the jury any questions of primary fact which happened to be in dispute. The decisions are referred to by Mason J. They concerned s. 17(c) but the reasoning in the judgments clearly extended to other paragraphs of the section except so far as s. 19 provides that certain matters should be questions of fact and it is difficult to understand how in the present case the learned trial judge fell into the error of leaving the defence under s. 17(e) as a question of fact to the jury. The same may be said in relation to the defence under s. 17(h). His Honour erred in leaving to the jury the question whether the matter was published for the purposes of a discussion and the question whether there was such a discussion. I respectfully agree with the view which was tentatively expressed by Windeyer J. in Australian Consolidated Press Ltd. v. Uren [14] , in relation to this paragraph.

As the right of action came to an end with the death of the plaintiff, Mr. Calwell, the appellant could only succeed on this appeal if the proper order were one restoring the jury's verdict. There cannot be a new trial of the action. The error of leaving the defence under s. 17(e) to the jury would require that there be a new trial at least on that ground. So would the error of leaving to the jury the question whether the matter was published for the purposes of a discussion and the question whether there was such a discussion (s. 17(h)). However, there would be no occasion for a new trial if the defences under either s. 17(c) or s. 17(e) were made out and if there was no evidence of a lack of good faith. No questions of primary fact arose in the course of the trial in respect of the pleas based on these two paragraphs of s. 17.

I agree that there was no evidence of a lack of good faith and I do not wish to add to what has been expressed by Mason J. on that matter. There remains, then, the question whether either the defence under s. 17(c) or the defence under s. 17(e) was established in law. I am primarily content to agree that the defence under par. (e) was so established but I would express my conclusion that the defence under par. (c), that the publication was for the public good, was also established. Both pleas raise the same question of substance in the circumstances of the present case because the interest of persons in knowing the truth (the requirement of s. 17(e)) is an interest of the public. In other words, it is for the public good that information should be given to the public with respect to a subject as to which the public has such an interest in knowing the truth as to make the publisher's conduct in making the publication reasonable under the circumstances. In this respect I would differ from the view expressed in the Supreme Court on appeal.

The questions whether the defences under s. 17(c) and s. 17(e) are established must be related to the defamatory imputation which was published. The only defamatory imputation was that which arose from the "innuendo", namely, that the plaintiff lacked loyalty. The loyalty was political loyalty in the Federal Parliamentary Labor Party. There was no imputation against the private character of the plaintiff. I find it hard to imagine a subject matter which should in our democracy more freely be able to be discussed, in writing or by word of mouth. It is for the greatest public good that views on the political attitudes, including party loyalty, of members of the Houses of Parliament should be able to be expressed without inhibition. The public are entitled to the views on such a subject of political commentators, expert or inexpert. The views expressed, and the imputations thereby made, may be correct or incorrect, but the public has an interest in hearing them whatever they may be and it is for the public good that interest should not be stultified. If a commentator honestly believed that the plaintiff lacked loyalty to the then recently appointed leader he was entitled to say so without fear that his view might be incorrect and that he would be liable in damages for the imputation.