Hall-Gibbs Mercantile Agency Limited v Dun [1910] HCA 66

Hall-Gibbs Mercantile Agency Limited v Dun [1910] HCA 66 - HCA 1910 case summary — Zoe

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last week, by R. G. Dun & Co., marked the passing of the Lav. pioneer trade protection society of Australia, the business oe having been established in 1855. The concern was given its = - - name and was owned and operated for a number of years by the Hon. T. M. Hall, M.L.C., of Brisbane, but lately owned by Mr. S. E. Bailey. This is the second old landmark in the line of trade protection taken over by R. G. Dun & Co. in Australia." The plaintiffs alleged that by this notice the defendants meant that the business of the plaintiffs in Queensland as a trade pro- tection society had been acquired or absorbed by the defendants, that the plaintiffs had ceased to carry on their business in Queensland, and that the Hon. T. M. Hall, the governing director of the plaintiff company, had ceased to be interested in Queens- land in a business of a like nature to that carried on by the plaintiffs, which business he had previously founded and carried on in Queensland, and that such business so founded and carried on in Queensland had been acquired or absorbed by or into the business of the defendant firm. Several witnesses of good commercial standing who were called for the plaintiffs stated that they understood the publication to refer to Mr. T. M. Hall, and to mean that the Queensland business of which he was, and is, governing director had been acquired by the defendants. No evidence of actual damage was offered. No evidence was called for the defence, and the jury found, inter alia, that, assuming the words to be capable of a defamatory meaning, they bore and were intended to bear the meaning alleged or some defama- tory meaning, and that they contained an imputation whereby the plaintiffs were likely to be injured in their profession or trade. Cooper C.J. held that the words were capable of the meaning alleged in the claim, and were capable of a defamatory meaning, and that therefore it was not incumbent on the plaintifis to prove damage. The Full Court of Queensland reversed this decision (1), and it is from their judgment that the present appeal

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The action belongs to a class which before the passage of the Act of 1889 was not included among actions for defamation. Up to that time the law in Queensland was in this respect identical with that laid down in 1892 as the law of England by Bowen LJ., delivering the judgment of the Court of Appeal in Ratcliffe v. Evans (1). There the plaintiff sued for damage caused by the publication by the defendant, falsely and maliciously, of words importing that the plaintiff had ceased to carry on his business of engineer and boiler-maker, and that his firm no longer existed. Bowen LJ. said: - " That an action will lie for written or oral falsehoods, not actionable per se nor even defamatory, where they are maliciously published, where they are calculated in the ordinary course of things to produce, and where they do produce, actual damage, is established law. Such an action is not one of libel or of slander, but an action on the case for damage wilfully and intentionally done without just occasion or excuse, analogous to an action for slander of title. To support it, actual damage must be shown, for it is an action which will only lie in respect of such damage as has actually occurred." And in 1900, in the House of Lords case of Royal Baking Powder Co. v. Wright, Crossley & Co. (2), Lord Halsbury, speaking of the class of actions on the case to which Ratcliffe v. Evans (8) and the present action belong in England; said: "The damage is the gist of the action"; and Lord Davey enumerated as the essentials of such actions on the case - (1) that the statements complained of were untrue; (2) that they were made maliciously, i.c., without just cause or excuse; (3) that the plaintiff has suffered special damage thereby (4). As Bowen LJ. said in Ratcliffe v. Evans (5), where it is the damage done that is itself the wrong, "the expression 'special damage,' when used of this damage, denotes the actual and temporal loss which has, in fact, occurred." In that instance a general loss of business since the publication was held to be such actual damage as would sustain the action. In

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established any cause of action. I do not dwell on the question of malice, which in such a case as this does not mean more than the doing of the injury intentionally and without just cause or excuse. It is to be remarked that the word malice is not nor is any equivalent form of words employed in any part of tl Defamation Act. Intentional publication, however, is the thi aimed at ; and the Act sets forth the circumstances which stitute cause or excuse. It is to be gathered from the judgment of Cooper C.J. that in directing the jury he had explained malic in its legal sense, in relation to such an action. There can be doubt that the publication was intentional, and if it referred to the plaintiffs the jury were entitled to find that it was malicio As to the truth or untruth of the statement published, the case was conducted on the footing that if it applied to the plaintifis it was untrue, the plaintiff company setting up as the-cause of complaint the statement, in relation to their still subsisting busi- _ ness, that it had ceased to exist, the defendants not denying that the statement was untrue as applied to the business of the plain- tiffs, but denying that it did so apply, and asserting that it applied a only to another firm's business, in relation to which it was per- fectly true. 'The questions, therefore, are reduced to these: ( whether the learned Chief Justice was right in holding that the publication was capable of a defamatory meaning in the sense of sec. 4 of the Defamation Law of Queensland, 53 Vict. No. 1 (now sec. 366 of the Queenslund Criminal Code); and if he was, (2) whether on the evidence the jury could in reason attach such a meaning to it as a fact in relation to the plaintiffs. If they - could their verdict must stand. First, then, are publications of this class made defamatory by s. sec. 4 of the Defamation Act? The respondents say that the Act did not intend to apply to such publications at all. They - contend that the words of sec. 4 do not cover them; that if :

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primd facie they do so, still actions of the class in question are not within the scope and purpose of the Act. It is urged that if it is to the business of the plaintiff company that the publication refers, and if it can be called an "imputation," still the imputa- tion is not upon the plaintiffs, but refers solely to their business, and that the section deals only with imputations upon persons themselves by which they are likely to be injured in business. By this I understand the defendants to mean personal imputa- tions reacting upon the business carried on. I do not see that the section is thus restricted in meaning. It appears to be intended to have a very wide operation. If a suggestion or assertion that a person has gone out of business is an "imputa- tion" at all, it is certainly an imputation "concerning," ie., relating to that person. It relates to that person in respect of his business. It seems then that the words of the section are sufficient to cover such a statement or assertion if it is within the scope and purpose of the Act. Now the Statute is written in the style of a Code, and it is urged that the presumption is therefore against any intention to make amendments. I quote some remarks of Cozens-Hurdy M.R. in Bristol Tramways and Carriage Co. v. Fiat Motors Ltd. (1). There the case turned upon section 14 of the Sale of Goods Act 1893, and his Lord- ship said: "I rather deprecate the citation of earlier decisions, 5, The object and intent of the Statute of 1893 was no doubt simply to codify the unwritten law applicable to the sale of goods, but in so far as there is an express statutory enactment, that alone must be looked at and must govern the rights of the parties, even though the section may to some extent have altered the prior common law." These observations apply with added force to the present case, which is that of an Act the avowed purpose of which is to amend as well as to declare the law. It is truly said that it is the law of defamation with which the Act purports to deal, and that rights of action in such cases as the present were previously not part of that law. But itis an amendment of the law of defamation to bring any class of state- ments likely to cause injury within it by Statute, and therefore, if the words of the Statute are sufficient to cover statements of (1) 26 T.L.R, 629 at p. 630. you. 12 7

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of the Queensland Criminal Code to the facts proved, is of con- siderable importance and not free from difficulty. The jury found that the defendants had, in the notification complained of, published of the plaintiff company words which lead the public to believe " that the plaintiffs had ceased to carry on their business and that such business had been acquired and absorbed by the business of the defendant firm." No evidence of special damage was offered. The plaintiffs contended that it was not essential, because their cause of action was for the unlawful publication of defamatory matter within the meaning of sec. 366 of the Criminal Code, which is identical with sec. 4 of the Defam- ation Law of Queensland 1889. They admitted however that, if the Code and Act did not apply, the action must fail, in the absence of proof of special damage. The whole controversy therefore turns upon whether the words found by the jury to have been published with the meaning above stated are " defam- atory matter" within the meaning of the section of the Code to which I have referred. In reading the section it must be taken that "person" includes "public company." The words material to the present case are as follows : - * Any imputation concerning any person . . . by which the reputation of that person is likely to be injured, or by which he is likely to be injured in his profession or trade . . . is called defamatory, and the matter of the imputation is called defamatory matter." The word "impu- tation" in its widest meaning is equivalent to "statement." An imputation concerning a person is in that sense merely a statement concerning that person. Cooper C.J. who presided at the trial gave several illustrations of such use of the word, and many others are to be found in Murray's Great Dictionary. If the word is to be taken as used in that sense, it is undoubtedly wide enough to cover the publication complained of, and the Court is bound to give effect to that meaning, no matter how harsh an innovation in the law may be effected by the Statute as so interpreted. But there is

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another use of the word, at least as usual and well recognized, a use in a narrower, or what is called in the dictionaries a bad sense, namely, to describe a statement concerning a person which has in it something to his discredit. If the legislature has used the word with the latter meaning, the section can have no application to the present case. The majority of the Supreme Court, inter- preting the word in its narrower sense, held that the Statute did not apply. In determining whether that view is right it becomes necessary to examine' several provisions of the Defamation Act, and the law as it stood when that Statute was enacted. As far back as 1847 a New South Wales Act, 11 Vict. No. 13, had so far departed from the English law as to attach the same civil liability to defamatory publications by word as to those by writing. That was the law of Queensland at the time when the Statute now under consideration was passed. Written words published of a person, discrediting him in his conduct or character, were punishable civilly and criminally whether they affected him in his business or not. Words, however, might be spoken or written of him in his business. and might be likely to injure him in his business, yet they were not actionable or punishable unless they were defamatory of him, that is to say, charged something discrediting his conduct or character. In such a case, however, if it were shown that the statement complained of was in fact untrue, was published by the defendant of the plaintiff's business, and with intent to injure him in his business, or with a reckless disregard of whether he injured him or not, and actual damage to the plaintiff was occasioned thereby, the defendant was liable, not for defamation, but in another form of action, usually described as an action on the case for damages. Such was the case of Ratcliffe v. Evans (1), in which Bowen LJ. expounds the law on the subject. There was another actionable wrong of an analogous kind known as slander of title, where the statement causing damage was made of the man's goods, or of his business, and not of his conduct or character. In that case also proof of falsehood, malice and special damage were essential to the cause of action. Both those actions were founded on false, malicious and disparaging statements followed by special damage. And (1) (1892) 2 Q.B., 524.

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although in the first-mentioned class of case the man alone or the man in relation to his goods were the object of disparagement, and in the latter class of case the goods only, both were generally dealt with in text-books under the head of libels on persons in relation to their businesses, or trade libels, and were always described as analogous to actions for libel. In libels concerning persons in their businesses, the characteristics of all these several kinds of action were often present, and difficult to identify and separate. In this state of the law the Defamation Act of 1889 was enacted by the Queensland legislature. Mr. Feee for respondents urged very forcibly that it must be assumed that the legislature, in passing a law to declare and amend the law of defamation, could not have intended to include within its pro- visions a cause of action which had never before been classed as defamation and which, though possessing some of the characteris- tics of defamation, had always been recognized as having its foun- dation not in the right of every man to protect his character and reputation from unjustifiable attacks, but upon rights of an entirely different kind. The argument is no doubt based on the very sound principle of interpretation that general words in an enactment will ordinarily be treated as controlled by its subject- matter. But it must be remembered that the legislature some- times thinks it expedient to extend the subject matter so as to take in an entirely new field. Turning to the Act itself we find it deals comprehensively with the whole subject of defamatory statements, and that it fundamentally alters the law in many respects. The protection of a man from injury to his reputation or his business by defamatory statements concerning the members of his family, living or dead, is an extension of the subject matter of defamation, at least as novel and as important in its conse- quences as that now under consideration. Yet that is clearly the operation of the earlier portion of the section. Again, the fourth section deals separately with the reputation and with the busi- ness of the person defamed. Imputations by which either are likely to be injured are declared to be defamatory. Every state- ment defamatory of the man, whether apart from his business, or in relation to his business, is included in the protection of his reputation from injury. On the other hand, every statement

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Judgment (108 paragraphs)