Godhard v James Inglis and Co Ltd [1904] HCA 37

Godhard v James Inglis and Co Ltd [1904] HCA 37 - HCA 1904 case summary — Zoe

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If the Court is of opinion, considering all the evidence, that the H. ©. or A. case, if tried again, must have the same result, a new trial should 1904. not be granted. PETS. [Grirrirx C.J. - If the direction was wrong, there must be a jiiesd tae new trial, unless we are satisfied that the direction was altogether & Co. Lrv. immaterial, and could not have affected the jury's verdict.] The article dealt with a matter of public interest, and, there- fore may be justifiable as comment, even though unnecessarily severe. It was a criticism upon the system, and must inevitably reflect upon those who are responsible for the system. If it is _ fair comment, or bond fide opinion, those who suffer cannot complain: E£astwood vy. Holmes (1); Lutimer v. Western Morn- ing News Co. {2). The defendants are entitled to assume that the jury found the question of fair comment in their favour. [O'Connor J. - The difficulty is that we are not in a position to say whether they did so or not, because, in arriving at their verdict, they may have been influenced by the ruling that is objected to. ] The direction was not wrong, in view of the particular cireum- stances of the case. The libel, though capable of referring to the plaintiff, did not do so in terms, and therefore evidence of identity was necessary. To rebut the plaintiff's evidence, the defendant may give evidence that the plaintiff was not in fact intended, and that persons reading the article did not take it to refer to him. It is then a question for the jury, whether in fact the plaintiff was one of the persons against whom the attack was directed; Le Fanw vy. Maleolmson (3); Lawrence v. New- berry (4); Odgers, Libel and Slander, 3rd ed., p. 137. (Grirrita C.J. - In Le Fanw vy. Malecolmson the words were "some factories," but here it is clear that the words used refer generally to the persons who carry on the system. That being so, must not all such persons be the persons " intended ?" O'Coynor J. - Does not the article refer on the face of it to all these persons 7] That was left to the jury, and they have found for the defend- ants. The whole summing up should be looked at, and, if the

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free from objection. It was contended before us by the learned counsel for the appellant that it does not matter who is the person to whom the writer of a defamatory article intends it to refer, pro- vided that the words he uses are capable of referring to the plaintiff, and witnesses are called to prove that they understood them to refer to him. On that point he referred us to the case of Bromage v. Prosser (1) and other cases, but in those cases it was held that, it being conceded that the plaintiff was the person spoken of, the de- fendant could not say that he did not intend to defame him, or do him any injury, when he used the words complained of. But it does not by any means follow, when the question is, who is the person spoken of, that the defendant can say that he did not mean to refer to the plaintiff at all. During the argument I gave this illustration. A defendant publishes defamatory matter concern- inga man A. B., which might or might not be justified. Some other person named A. B., or friends of his, mistakenly think that the publication refers to him, and he brings an action. As at present advised, I am disposed to think that an action would not lie. The apparent reference to the second A. B., would in that case be an accident. If a man is doing a lawful act in speaking of A. B., that is to say, publishes defamatory matter of him which he is justified in publishing, it would be a very strange thing if his act should become unlawful because one of his hearers or readers misunderstood his reference. The direction which the learned Judge was asked by counsel to give, was therefore erron- eous, and the direction given to the jury "that the plaintiff must prove that the words were written of and concerning him, and were intended by the defendant company to apply to the plain- tiff," is in one sense perfectly correct. If the person defamed in the article was not the plaintiff, the plaintiff cannot complain. But that applies only where the question is, was it the plaintiff or somebody else of whom the defamatory matter was published. For the purpose of that inquiry it may be conceded that the matter in question is defamatory,and that the question is/who was the person defamed, was it the plaintiff or somebody else? For that purpose the identity of the plaintiff may be proved in the same way as in other cases, as for instance in criminal cases. But, though the words of the learned Judge's direction are in one sense perfectly (1) 4B. & C., 247.

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H.C. oF A. correct, it is clear, when the whole summing up is read, and 1904. taken in conjunction with the circumstances of the case as diselo es in the evidence, that his words were not used in that sense, n Tames ixerzs 2 the sense that it was necessary, before the plaintiff would I &Co. Lzp. entitled to a verdict, to prove that the writer of the article hs the plaintiff personally in his mind, not merely as some unknoy person who came within the category of manipulators, &e., bu as an individual member of society, the man, Godhard. It i quite clear from the passages read to us from the summing up the learned Judge, and it is not indeed disputed, that he state amongst other things, that the defendant must be shown to hay had the plaintiff in his mind when he wrote the article, the plaintiff could recover. He says: "If he had not him in hi mind when he wrote it, . . . the question is whether he kne that the plaintiff was connected withthe company . . . if yo think Inglis says truly that he knew nothing of Godhard, am had no intention of applying it to him, you must find for defendants . . . if you think that the defendant on the oth hand, intended a personal attack upon Godhard, the latter i entitled to a verdict," and His Honor adds, "I directed the jur that the defendant must have had Godhard in his mind when h wrote the article." The question raised, therefore, is whether th writer of matter defamatory of persons who are unknown t him, but are so described in the article that their identity is apparent to everybody familiar with the circumstances, is entitle to go free. For that position the learned Chief Justice relied o the case of Le Fanu vy. Maleolmson (1). That was an action for brought in Ireland. There were several counts in the declaration of which the second count alleged a libel beginning thus: " person, unless one who is perfectly acquainted with the worki of the Irish factories, can form the slightest idea of cruelties and miseries to which the Irish factory hands are subj I know some factories in this country, and the cruelty which the operatives in them are used is really incredible The plaintiffs, who were the owners of a factory in Ireland, alleg by innuendo that by the words "gome factories" the defend intended to refer to them. There were five counts, and the j

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gave a general verdict in favour of plaintiff, so that, if any count H.C. oF a. was bad, the whole verdict fell and error was brought on the Be ground that the second count was demurrable. The question that Gopuarp was argued before the House of Lords was whether the charge, 5.4. Ixeus that in some factories "the cruelty with which operatives were & Co. Lr. treated was incredible" could by innuendo be made to apply to the plaintiffs. A number of ancient cases and authorities were cited, in which defamatory words had been published that were ambiguous in their terms. For instance one was an action on the words "my enemy," and it was held that it could not be proved what was meant by "my enemy." In another case the words were "I know one near about J. S. that is a notorious thief," as to which it was held that it could not be established by innuendo who was referred to. In another case, in 1 Ro. Ab., 81, the words were "one of my brothers," in which it was said that no particular brother could bring an action. Whether these cases should now be treated as good law it is not material for us to consider, but the point raised was, as I have stated, that, the words "some factories" hav- ing been used, the plaintiffs, as owners of a factory, could not prove that theirs was one of the factories meant by that term. Tt was not disputed, or questioned in any way, that if the plain- tiffs' factory was one of the class referred to, the plaintiffs, as the owners of the factory could maintain the action. It did

not oceur to the learned counsel in that case, in the course of a _ very lengthy and exhaustive argument, to raise any such point as that. The question before the House of Lords being what it was, the language used must of course be interpreted with reference _ to that question, and to the particular circumstances of the case. Lord Cottenham, L.C., in his judgment says (1): "The first _ proposition contended for is that this is a complaint of the publica- tion of a libel which, although found by the jury as intended to apply to the plaintiffs is so framed that no innwendo, even after verdict, can support the declaration in which that complaint is made. Now the question is not whether the matter complained
of is libellous, for about that no question can be raised." And again, " But the way in which the plaintiffs are referred to is expressed by the term 'some factories.' 'If the same tyranny is () 1 H.L.C., 687, at p. 663.

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H.C. or A. These are parts of the judgment from which the learned ( 1904. Justice read a passage to the jury, but he appears to have Wekckecs preted it to mean that a person who publishes defamatory mi rv _ is not liable unless he has the individual plaintiff in his mind "eee. neds zi the object of his attack. But the injury, as was pointed out. Lord Campbell, is done if a man is pointed out in such a way t any reader of the article may know who it is that is being attack The injury is done just as much as if he had been named, and: fact that the defendant does not know who is the person to his designation applies, can make no difference. A man makes an attack upon an individual by a description which distinctly to that individual, is not entitled to excuse himself saying: "I did not know that he was the man." Some busi are carried on anonymously, and if a person carrying on such business were attacked unwarrantably, it would surely be excuse for the defendant to say, when sued, "I did not know plaintiff, I never saw him before." To apply the lang Lord Cottenham again, " There being, I believe, a very gen practice to the contrary, and common sense being entirely to th contrary," I cannot see that there is any necessity for the in vidual libelled to be expressly named in order to entitle him the remedy he asks. It seems to us, therefore, in the pre case, to be quite immaterial that no person is mentioned by nam since, if the person who has been defamed can be identified the words used, in such a manner that nobody can have any in fact that he is meant, an action will lie. Here there can b doubt who are the persons meant. The defendants meant t attack those who carried on the business of the Coupon Compan of whom the plaintiff was the chief. How then can it be mate whether the writer knew his name, or had him personally in |} mind? The point seems to have been altogether irrelevant, an as it is possible that the verdict of the jury went on that g we are, we think, bound to grant a new trial. It may be that tl verdict went on the ground that the publication of the libel justifiable under all the circumstances, but it is impossible for u to say whether that was so or not. Where there has been 4 erroneous direction, which may have been the foundation of th verdict, there is no alternative but to grant a new trial.

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Judgment (73 paragraphs)

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