Kerridge v Simmonds [1906] HCA 66

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1905, a summons had been issued against the defendant on the plaintiff's complaint for unlawfully publishing oral defamatory matter about her. The plaintiff sued on this deed for arrears of the stipulated payment. At the trial before Mr. Commissioner Roe the deed was proved, and the summons was proved. Objec- tion was taken that the agreement was void in point of law, first, on the ground that it was an agreement made without considera- tion upon the determination of an immoral cohabitation. That objection is met by the fact that the instrument was under seal. A further objection was taken that the agreement was against public policy, and therefore void, being given for the purpose of stifling a prosecution for an indictable offence. No doubt, by the agreement the plaintiff expressly agreed to withdraw proceed- ings for an indictable misdemeanour. 'The question, therefore, whether an agreement to withdraw proceedings for defamation is void as being contrary to public policy is distinctly raised for our consideration. The withdrawal of such a prosecution was a part of the consideration for the promise sued on, and if it is bad it yitiates the whole deed. I think the law on the subject is fairly clear. Although there are no recent express decisions of any Court of appellate jurisdiction on the point, I think the accepted view of the law has been recognized so long that it cannot now be said to be in doubt. The first case which I propose to consider is that of Keir v. Leeman (1) which was an action upon an agreement to compromise proceedings in respect of an assault amounting to a riot. In that case Lord Denmun C.J., delivering the considered judgment of the Court, after reviewing all the previous reported eases, said: - " The result of the cases makes it clear that some indictments for misdemeanour may be compromised, and equally so that some cannot ; the line will, as we apprehend, be found correctly traced by Gibbs C.J., in the passage just quoted, and by Le Blane J. in Edgcombe v. Rodd (2)." The passage quoted from Gibbs C.J., was from his judgment in the case of Baker v. Towns- end (3) and is as follows : - * The parties have referred nothing but what they had a right to refer. They have referred the several assaults; these may be referred. They have referred the (1) 6 Q.B,, 308, at p. 321. (2) 5 East., 294.

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right of possession; that may be referred. The reference of all matters in dispute refers all other their civil rights, which may well be referred." The dictum of Le Blanc J. is as follows : - "This was a prosecution for a public misdemeanour, and not for any private injury to the prosecutor." Lord Denman pro- ceeded : - " We shall probably be safe in laying it down that the law will permit a compromise of all offences, though made the sub- ject of a criminal prosecution, for which offences the injured party might sue and recover damages in an action. It is often the only manner in which he can obtain redress. But, if the offence is of a public nature, no agreement can be valid that is founded on the consideration of stifling a prosecution for it." The learned Lord Chief Justice went on to observe that in that case the offence was not confined to personal injury, but was accompanied with riot, and these were matters of public concern and therefore not legally the subject of compromise. He also said, speaking of an agreement to compromise made with the sanction of the Court : - * Plainly it cannot make that legal which the law condemns." That case was taken to the Court of Exchequer Chamber (1) where the judg- ment was delivered by Tindal C.J. He is reported to have said : - "Indeed it is very remarkable what very little authority there is to be found, rather consisting of dicta than decisions, for the principle, that any compromise of a misdemeanour, or indeed of any public offence, can be otherwise than illegal, and any promise founded on such a consideration otherwise than void. If the matter were res integra, we should have no doubt on this point. We have no doubt that, in all offences which involve damages to an injured party for which he may maintain an action, it is competent for him, notwithstanding they are also of a public nature, to compromise or settle his private damage in any way he may think fit. It is said, indeed, that in the case of an assault he may also undertake not to prosecute on behalf of the public. It may be so: but we are not disposed to extend this any further." This case establishes, in my opinion, that there is no objection to compromising a claim for private injury resulting from an act which amounts to an indictable offence provided that it is not a matter of public concern. As to the argument

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lays down this principle, which I take to be one of general application, that where the matters of indictment are matters of public concern they are not the subject of compromise." All the learned Lords Justices thought it necessary to show that the matter under consideration was one of public concern, and for that reason, which was assumed to be the governing consideration, it was held that the agreement in question was void because it was an agreement to stifle the course of public justice. Upon the authority of these cases I am of opinion that the law allows the compromise of a prosecution for oral defamation for which the injured party can sue and recover damages. Here the plaintiff was entitled to sue for damages for the oral slander. Can it then make any difference that she had laid a complaint for the slander upon the same day on which the agreement was signed ? On that complaint the defendant might have been punished by a fine, or committed for trial, but the injury complained of was a purely personal injury. I can draw no distinction between a case of defamation and a case of common assault from the point of view of public concern. For these reasons I am of opinion that it is not unlawful for a person defamed, or who has sustained purely per- sonal injury, to withdraw a prosecution already instituted for such an offence, or to agree not to institute such a prosecution. Where a person is entitled to recover pecuniary damages, the suggestion that there is a social duty incumbent upon hii to prosecute is untenable. The law allows him either to prosecute or to sue for damages, and I can see nothing to prevent him from agreeing to receive an indemnity for the personal injury he has sustained, leaving the representatives of the public to prosecute if they think fit. If, as in some cases, he is the only person entitled to institute the prosecution, then d fortiori it is a matter of private, and not of public, concern. With regard to the point of uncertainty, I think that the agreement should be read as mean- ing that the defendant would pay the plaintiff £13 a month during their joint lives. For these reasons, I am of opinion that the decision appealed from is correct and should be affirmed.

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other words, that there was a moral duty to continue the prosecu- tion, which tainted the withdrawal of it under compact. The question of uncertainty is, I think, settled by the case of Hitch- cock v. Voker (1). As to the other ground the cases referred to by my learned brother the Chief Justice seem reasonably con- clusive. I would also like to read a passage from the judgment of Bowen L.J.in the case of Jones v. The Merionethshire Permanent Benefit Building Society (2). In that case the secretary of a building society had made default in accounting for money paid to him, and was threatened with a prosecution for embezzlement. He applied for assistance to the plaintiffs, and they gave a written undertaking to the society to make good the greater part of the debt due from the secretary, and they gave two promissory notes and some title deeds as collateral security. It was proved that the plaintiffs in giving the undertaking were actuated by the desire to prevent the prosecution, and that was known to the directors of the society ; but no promise was made that there should be no prosecution. The society brought an action on the promissory notes, and the Court held that it was an implied term of the agreement that there should be no prosecution; that the agree- ment was therefore founded on an illegal consideration and void ; and that the society could not recover on the promissory notes. In giving his judgment Bowen LJ. said: - "'The cases may be ranged under two heads: first of all, the cases where there is the suggestion of an agreement to stifle, as it is called, a pro- secution ; and secondly, the cases where there has been that which amounts to pressure or undue influence within the meaning attached to those terms by a Court of Equity. First of all, with regard to an agreement to stifle prosecutions. The duty to prosecute, or not to prosecute, is a social and not a legal duty, which depends on the circumstances of each case. It cannot be said that it is a moral duty to prosecute in all cases. The matter depends on considerations, which vary according to each case. But the person who has to act is bound morally to be influenced by no indirect motive. He is morally bound to bring a fair and honest mind to the consideration and to exercise his decision from

Kerridge v Simmonds [1906] HCA 66 - HCA 1906 case summary — Zoe

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