Higgins JJ. r. 53 Order LIV., v ll CLR.) OF AUSTRALIA.

Higgins JJ. r. 53 Order LIV., v ll CLR.) OF AUSTRALIA. - [1910] HCA 26 - HCA 1910 case summary — Zoe

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arising out of the same transaction or series of transactions is alleged to exist, whether jointly, severally, or in the alternative, may be joined in an action as plaintiffs, provided that the case is ea such that if such persons brought separate actions some common Starr. question of law or fact would arise. Gritith OJ. "Provided that the Court or a Judge may, in any case in which separate and distinct questions arise, order that separate plead- ings be delivered, or separate trials had, or may make such other order as may be just. "When several plaintiffs are joined in an action, judgment may be given for such one or more of them as is or are entitled to relief for such relief as he or they may be entitled to, without any amendment. But the defendant shall be entitled to his costs occasioned by joining as a plaintiff any person who is not entitled to relief, unless the Court or a Judge in disposing of the costs otherwise directs." The evidence which the Supreme Court thought improperly admitted was given by two witnesses named Brown and Woosley. In the course of the plaintiffs' case a witness named Clarke had given evidence as to a conversation between himself and the defendant Sharpe, which, if it took place before 20th February, the date of the issue of the writ, was material to prove both the fact and the extent of the publication of the circular by Sharpe and the defendant company before that date. Clarke could not fix the exact date of the conversation, but he said that on the following day he repeated it to several persons, of whom it is agreed that he named Brown as one. Sharpe, who gave evidence for the defendants, put an entirely different colour upon his conversation with Clarke, and said that it took place after action brought. In answer to this evidence the plaintiffs called Brown, who deposed that he had a conversa- tion with Clarke on a day which he was able to fix from other circumstances as before 19th February, i.c., at least two days before action. He was then asked "What was the subject of the conversation ?" and replied " The conversation was about the circular." In answer to the question " What circular?" he said "Clarke described it as Sharpe's bombshell. It is the circular in

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These answers were objected to, as I understand, on the ground that the conversation between Clarke and Brown was ves inter alios acta or hearsay. No point was made as to the discre- tionary power of the presiding Judge to admit any relevant and admissible evidence at that stage of the case. In my opinion the objection is founded on a misapprehension. When the existence of a fact tends to prove the existence of another fact relevant to the issue the existence of the first fact is also a relevant fact, and may be proved by appropriate evidence. In the present case the fact, if it was one, that Clarke and Brown had a conversation before 19th February on the subject of a previous conversation between Sharpe and Clarke tended to prove that that conversa- tion also took place before 19th February, which was a fact directly velevant to the issue of publication before action. The fact that that conversation took place between Clarke and Brown was therefore a relevant fact, which could only be proved by proving the subject matter of the conversation so as to distinguish it from conversations on other subjects. This was not only the best but the only evidence. The objections of hearsay and res inter alios have never been held to apply to such evidence : see Taylor on Evidence, sec. 576; Greenleaf on Evidence, sec. 100. Thus, if an important date could only be proved by reference to a conversation which took place between A. and B. as to, say, a recent earthquake or fire, the fact (not the details) of the conver- sation could be proved, not as evidence of the fact of the earth- quake or fire, which would have to be proved aliwnde, but to show that the conversation was subsequent to the earthquake or fire. In such cases the fact that the conversation took place is the relevant fact, which must, as in other cases, be proved by the best evidence, and evidence of the subject matter of the conversa- tion is, as already said, not only the best but the only possible evidence, unless, perhaps, it was the only conversation between the parties, which is not suggested. It is not, of course, evidence

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statements are clearly within the principle laid down by Lord panyes & Co. Esher M.R. in South Hetton Coal Oo. Ltd. v. North Eastern ray News Association Ltd. (1). It is unnecessary to decide in this Suarre. case whether a public company could be made criminally liable o'connor J. under Queensland laws for the offences mentioned, because in my opinion the wrong to the company and the injury to its business by the defamatory matter would be none the less if public com- panies were immune from criminal prosecution in relation to the matters charged. In respect of injuries to business it was in my opinion open to the several companies to recover precisely the same kind of damages as the other plaintiffs, and I can see no reason why they should not have been joined with them as plaintiffs in this action. The objection of misjoinder as to the defendants is in reality rather an objection to the finding of the jury than to the joinder of the defendants. The defendants were properly joined on the pleadings, and if the evidence had been sufficient to justify judgment against each of them the ground of objection now relied on could not have arisen. The defendants were charged with publishing both the circular and the letter to the defendant Nielsen as set out in the statement of claim. As to the latter there is sufficient evidence of publication by all three defendants. As to the former there is clear evidence of publication by the company and Sharpe, but as to Nielsen there isnone. That is the view of all the learned Judges of the Full Court, and it is so plainly right that with respect to it Ido not think it necessary to do more than express my entire concur- rence. When the case went to the jury, therefore, there was no evidencé to justify a finding against Nielsen in respect of the publication of the circular. But as there was evidence against him in respect of the publication of the letter, the jury were entitled to find against him as to that publication with appro- priate damages. When this became apparent at the close of the evidence, the learned Judge ought to have directed the damages against Nielsen to be assessed separately from those against the other defendants. But that was not done. The jury were

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Nielsen's conduct or position which could reasonably have 4. ©. or A. aggravated the damages against all the defendants. In my is opinion, therefore, Nielsen's right is to have the judgment as parwes & Co. against him set aside, but a new trial must at the same time be re ordered for the purpose of having damages re-assessed against Suarre. him in respect of the publication for which he is liable, the ovonnor 3. plaintiffs being restricted in the final result from recovering a total of more than £1,000 from all the defendants. In adjusting the costs of such an order it would be necessary to give full weight to the consideration that the plaintiffs, being responsible for the assessment of damages against the defendants jointly instead of severally, really brought about the necessity for the re- assessment. It was argued on the defendants' behalf that a new trial of the whole case must in any event be directed because the damages were excessive, and because the learned Judge at the trial had improperly admitted certain evidence. As to the first of these grounds I agree that it has no substantial foundation for the reasons stated by my learned colleagues to which I do not wish to add. In my opinion neither of the objec- tions to evidence is tenable. The one objection applicable to both pieces of evidence, namely, that it could not be given in reply, involved a question of procedure at the trial which was entirely within the discretion of the presiding Judge. With his exercise of discretion in that respect a Court on appeal will not interfere. Taking the substance of the objections, the first is that relating to the evidence of Woosley. He was allowed to prove the fact that he had a conversation with Sharpe; but evidence of what was said at the conversation was not admitted. It is difficult to see on what ground evidence of the mere fact of the conversation, a preliminary fact only and in itself of no moment, could have been excluded. No doubt an unfair use may sometimes be made of such a fact in counsel's address to the jury. But it is for the Judge at the trial to see that such incidents are not unfairly used. As to the other matter I am of opinion that the portion of Brown's evidence objected to was admissible. Clarke's evidence as to his conversation with Sharpe was not only material but important, and its importance largely depended upon whether it took place

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action, or to grant a nonsuit or to allow a plea in abatement. H.C. or A. (See Order XXV., r. 20). The Court has full power to rectify mae mistakes as to parties before or at the trial; and judgment may parnes & Co. be given for such one or other of the plaintiffs as are entitled to ie relief and against such one or more of the defendants as are Suarre. found to be liable, without any amendment (Order IIL, rr. 1, 4). - tiggins a. The Court must not refuse to'determine a cause or matter by reason only of the misjoinder or non-joinder of parties, and must deal with the matter in controversy so far as regards the rights and interests of the parties actually before it (rule 11). The points taken are numerous and important, and deserve a detailed examination, especially after the closely reasoned judg- ments of the Full Court. In my opinion, all the plaintiffis - the actual plaintiffs - were proper parties to an action for the alleged joint libel. This is the result of Order III, r. 1 - the English Order XVI, r. 1, as amended (and see Booth v. Briscoe (1)). The jury ought to have been told to assess damages separately for each plaintiff; but, as shown in Booth vy. Briscoe (1), it is not for the defendants to object if the plaintiffs make the mistake of taking a joint verdict. It has been urged also that the plaintiffs did not properly sue on behalf of themselves and all other members of the association. This objection was.not taken at the trial; and it is not covered by the notice of appeal to the Full Court of the State. For, as Shand J. points out, an objection that "the plaintiffs were not proper parties to the action " does not mean that the plaintiffs - those whose names appear as plaintiffs - those who have the carriage of the cause and who alone are responsible for costs - cannot sue on behalf of others who are not plaintiffs. Moreover, the defendants actively encouraged the taking of the course to which they now object; for the defendants' counsel asked at the trial that the question should be put to the jury in this form : - "What damages (if any)" - not "What damages to the named plaintiffs?" Iam inclined to think that the appellants ought to be confined to the grounds of objection which they have exhaus- tonter stated in their notice (under the Queensland rules they

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if it is an error - merely affects the amount of damages, such an amendment should be refused. But this is rather an unsatisfae- tory way of dealing with the point. If I have to deal with iton its merits, I should doubt whether even under the English rule, Order XVI, r. 9, such a representative action is permitted in an action for libel. For how ean it be said that the different persons libelled have "the same interest in one cause"? A number of firms carry on business in competition; and each may actually have an interest in getting the libellous statement believed of each other. But whatever may be the doubt under the English rule, such an action appears to be clearly not permissible under the Queensland rule. The Queensland rule is narrower in its scope, and allows such a suit only where there are numerous persons "having the same interest in the subject matter of a cause or matter." These words render the decision in Duke of Bedford vy. Ellis (1) inapplicable. i But, treating the form of action as wrong, I have to consider also - Is the error fatal to the verdict? The error goes to the root of the verdict if the amount of the verdict is to go to the named plaintiffs only; for the jury were directed, in effect, to estimate the damage done to all the members of the association, instead of the damage done to the parties named as plaintiffs. No one can say how much of the damages, £1,000, was given for the injury done to such members of the association as were not plaintiffs. On the other hand, if the amount of the verdict is to go to all the members of the association, the error becomes a harmless error of mere procedure. No injustice is done to the defendants, for the amount of the verdict will go in accordance with the intention of the jury, and in harmony with the intention of the parties in their conduct of the case. In other words, the phrase "on behalf of themselves and all other mem- bers of the association" may fairly be treated as if it were an alias for the unnamed members of the association. We are told that there is only one unnamed member. 'The plaintiffs must

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It is further urged that such of the plaintiffs as are corporations Barwes & Co. or firms cannot recover damages in this action for libel. Probably une: this objection may be taken as having been taken, in one aspect, Suarrx. at the trial - in the aspect that corporations cannot be libelled at - riggins. all; but in this aspect it was not seriously pressed before us. The objection in its other aspect was not mentioned either at the trial or in the notice of appeal. The argument - if it is open to the respondents - is, as I understand it, that under see. 543 of the Queensland Criminal Code 1899 a corporation or firm cannot be guilty of the crime of conspiracy; that the libel imputed the crime _ of conspiracy to these corporations or firms; that it is no libel to impute to a corporation a crime of which it is incapable; and that therefore the damages awarded must have been greater than if the jury had been told that corporations and firms could not technically be treated as guilty of the crime of conspiracy, a erime for which they could not be prosecuted. The defendants complain, in effect, that the damages were increased by a failure of the learned Judge to direct the jury as to the Criminal Code 5 and yet they did not mention misdirection on this point as one of the grounds of appeal. The damages given are for hurt done to the plaintiffs in the eyes of the producers - their customers - by the charge that they are conspiring against the producers ; the hurt done to the plaintiffs would be neither greater nor less whether the conduct - the conspiracy - charged be cognizable by the criminal law or not. It is clear that an action will lie at the suit of a trading corporation for a libel calculated to injure it in its business : South Hetton Coal Oo. Ltd. v. North Eastern News Association Ltd. (1). "I have come to the conclusion," says Lord Esher M.R., "that the law of libel is one and the same as to all plaintiffs; and that, in every action of libel, whether the state- ment complained of is, or is not, a libel, depends on the same question - viz., whether the jury are of opinion that what has been published with regard to the plaintiff would tend in the minds of people of ordinary sense to bring the plaintiff into contempt, hatred or ridicule, or to injure his character." Of

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Act 1874, see. 13. In his summing up the learned Chief Justice of Queensland laid great stress on the story of Clarke. He told the jury that, if it were true, it was conclusive against the defen- dants on the question of malice ; and he said also that the story of Clarke was exceedingly probable. Of course, Brown's evidence tended strongly to corroborate Clarke, and to make Sharpe appear untruthful ; but it was legitimately used to that end, if on other grounds it was admissible. But was it? The fact that Clarke and Brown were witnesses, had a conversation on any subject, or at any time is irrelevant to the issues. Clarke may have told Brown that he had had a conversation with Sharpe about the circular ; but if he did say so, he was then speaking without oath, without being subject to cross-examination. The objection taken by counsel at the trial was not the mere ground of hearsay, but that the evidence was irrelevant. If, in his examination in chief, Clarke had said "I told the conversation to Brown," it would not be evidence; and Brown cannot be allowed to say "Clarke told the conversation to me." Owing to the greater latitude of cross-examination, defendants' counsel elicited the fact that Clarke thought he had repeated the conversation to " several persons." The question was put, no doubt, to test Clarke's eredi- bility ; but the answer having been given, the defendants could not call evidence to contradict Clarke's statement on this purely collateral issue: Baker v. Baker (1): In re Haggenmacher's Patents (2), Taylor on Evidence, sec. 1435. If this were not the established practice, the Courts would often find themselves in a labyrinth of irrelevant issues; and just as the defendants would not be allowed to call evidence to contradict a statement made on an irrelevant matter by an opposing witness on cross-examination, so the plaintiffs ought not to be allowed to call evidence to confirm it. But if a witness said: "I had a conversation with the defen- dant. It was before my conversation with A."; and if evidence were called merely to fix the date of the conversation with A., the position would be very different. In such a case, the date of the conversation with the defendant being relevant, the date of the conversation with A. is deemed to be relevant as fixing the time

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