Lang v Willis [1934] HCA 51;

Lang v Willis [1934] HCA 51; - HCA 1934 case summary — Zoe

[7]

The words complained of were spoken by the defendant in the course of speeches all but one of which were delivered in the course of a by-election for the election of a Member of the Legislative Assembly of New South Wales to fill a vacancy caused by the death of the Member for the Electorate of Bulli. There were several candidates, including the plaintiff and Mr. Sweeney, both of whom claimed to be contesting the election in the interests of the Labor Party. Both were members of an Association called the Australian Labor Party, the rules of which made special provision for the selection of candidates for seats in Parliament; but, owing to the shortness of the time which elapsed between the death of the previously sitting Member and the date fixed for the by-election, it was not possible that certain provisions of the rules of the Party dealing with the selection of candidates could be complied with. In these circumstances, a dispute arose as to whether the plaintiff, who had been selected by the local electoral body, or Mr. Sweeney who had been selected by the executive, ought to be regarded as a duly selected candidate. In the electoral campaign, Mr. Sweeney had the support of the defendant who was the leader of the Labor Party in New South Wales and leader of the Opposition in the Parliament of New South Wales.

It is common ground that, so far as the Labor Party was concerned, the by-election involved more than the question of who was to be returned to Parliament. It was treated as a trial of strength between the plaintiff and the defendant; and this appears from the language set out in the various counts in the declaration. The language complained of in the action consists of long passages from speeches. So far as appears from them, and from the evidence to which we have been referred, the substantial charges made by the defendant against the plaintiff in this internecine warfare were - that the plaintiff had the support of persons associated with disruption in the Labor Movement; that he was making the same kind of attacks on the defendant as the adversaries of the defendant were making and was presumably seeking the same objective; that he was actuated by motives of self-interest; that he was challenging the Labor Movement and its leadership; that it could not be said that he was sincere though mistaken, because he "knew the rules backwards"; that he was a concealed enemy of the Labor Party; that it was strange that the plaintiff was refraining from pressing a claim against the Government (to which the Labor Party was in opposition) until after the by-election, he having a claim for compensation against the Government; a suggestion that enemies of the Labor Movement were getting the plaintiff to pull away the support from a leader (the defendant) whom they could not buy; that the plaintiff's conduct in opposing the selected and endorsed Labor candidate was an act of treachery to the rank and file and the leadership of the Labor Party; that the plaintiff had personally canvassed the directors of the Labor Daily to obtain an appointment as managing director; and that he had asked for the position of Agent-General. No evidence was called on behalf of the defendant; with the result that at the close of the plaintiff's case, after an address by plaintiff's counsel, the concluding address was delivered by counsel for the defendant.

[8]

The questions argued in the Supreme Court are stated both by the Chief Justice and Maxwell A.J., as he then was, in substantially the same words. I quote them from the latter's judgment: - "(1) That the learned trial Judge was in error in his interpretation of the rules and in ruling that Mr. Sweeney was the duly selected candidate for the by-election in question; (2) that His Honor should have directed the jury that they could find that the plaintiff honestly thought that he was the duly selected candidate; and (3) that His Honor should have directed the jury that the innuendo of domination and bribery in the first, third, fourth and fifth counts were capable of being supported by the words complained of." The notice of appeal to the Supreme Court contains no complaint that his Honor misdirected or omitted to direct the jury as to the application of sec. 5 of the Defamation Act 1912, nor any ground that the verdict was against evidence, or the weight of evidence or that the verdict was unreasonable. Halse Rogers J. and Maxwell A.J. (the Chief Justice dissenting) concurred in thinking that the alleged defamatory statements were capable of sustaining the innuendo that the plaintiff had been bribed and bought by the opponents of the Labor Party. The Chief Justice, on the contrary, agreed with the ruling of the learned trial Judge on this question. With regard to the interpretation of the rules and the direction proper to be given thereon, neither the Chief Justice nor Maxwell A.J. found any reason for granting a new trial. Halse Rogers J., although apparently of a different opinion, did not attach so much importance to this ground as to the third ground, namely, that the trial Judge should have left the innuendo charging bribery to the jury. Before us the respondent abandoned the contention made at the trial and before the Full Court that he was the duly selected and indorsed candidate of the Labor Party and submitted that the error in the trial Judge's interpretation was the declaration that Sweeney was the duly selected and indorsed candidate. There is no dispute that both parties joined in asking the trial Judge to state who was the selected candidate. In response to this joint request the learned Judge gave the ruling now complained of. But his Honor guarded himself by informing the jury that different minds might arrive at a different conclusion, and at the end of the summing-up acceded to the request of respondent's counsel that the question whether his client was insincere and spurious, as the appellant is alleged to have said, did not depend upon the Judge's construction of the rules. In my view of the case it is unnecessary to pass any opinion on the question of the strict interpretation of the rules as to who was selected under them. Whether the words were defamatory or not did not turn on the question of the rules. The respondent himself was jointly responsible with the appellant in importing this matter into the case as a major issue. The ruling having been given in the guarded manner I have mentioned, the only specific direction which respondent's counsel thought fit to ask for was acceded to by the trial Judge. Rule 151B of the Supreme Court Rules reads "No direction, omission to direct, or decision as to the admission or rejection of evidence given by the Judge presiding at the trial shall without the leave of the Court be allowed as a ground for such notice of motion unless objection was taken at the trial to the direction, omission, or decision by the party on whose behalf the notice of motion has been filed." It precludes respondent, in my opinion, from asking for a new trial on the ground of omission or misdirection by the Judge in his summing up. The facts are that the Central Executive of the Labor Party picked Sweeney as its chosen candidate, and Willis now admits that he could not be regarded as an officially selected candidate. I, therefore, agree that the Chief Justice and Maxwell A.J. were right in holding that the respondent failed in maintaining grounds 1 and 2, as no substantial wrong has been occasioned (cf. Lionel Barber & Co. v. Deutsche Bank (Berlin) London Agency[1]).

[10]

The remaining matter to be considered is the application of sec. 5 of the Defamation Act 1912. It reads: - "(1) On the trial of any action for defamatory words not imputing an indictable offence, the jury under the plea of not guilty may consider whether the words set forth in the declaration were spoken on an occasion when the plaintiff's character was likely to be injured thereby. (2) If the jury are of opinion that the said words were spoken on an occasion when the plaintiff's character was not likely to be injured thereby, they may find a verdict for the defendant." In the course of his summing up the learned trial Judge directed the jury in the following terms: - "It is open to you to find that they were uttered upon an occasion and in circumstances when the plaintiff's character was not likely to be injured. If you thought that you would find a verdict for the defendant." On the appeal before the Supreme Court no objection was taken by the respondent's counsel to this direction, or, indeed, was any objection that it was defective or erroneous taken at the trial of the action. The rule (Rule 151B) already stated precludes a litigant in a Court of final appeal from raising any point which might have been taken at the trial. It is, I think, too late to ask this Court to entertain this ground, notwithstanding the respondent's non-observance of the rule. "That rule was intended to apply, and does apply, to all directions without exception" (Bailey v. Willis[2]). It must be remembered that the occasion was not one when political policy or questions of State interest were being agitated. The election was made the battle ground to decide the leadership of the State Labor Party, and was fought apparently with great heat and amidst popular local excitement. The speakers did not mince their words, but spoke a language calculated to be understood by the miners in the Bulli electorate - a coal mining district. It cannot be said that the appellant began the abuse if it may be so shortly described, but the speeches of the respondent and the appellant at the election were a continuance of a struggle already begun for predominance in the party. The section of the Defamation Act already quoted was first introduced into the statute law of New South Wales in 1847, and was required to meet the hard conditions of pioneer days. It appears to provide a wider protection than that afforded by the doctrine of privilege at common law. It does not allow words imputing an indictable offence to be uttered, but it empowers the jury to consider whether words which they regard as defamatory were spoken on an occasion when despite the defamatory character of the language the plaintiff's character is not likely to be injured. In my opinion, the jury were entitled under the words of the section to regard this as such an occasion. The Legislature no doubt considered that not all defamatory statements injured the character of the person attacked, and that the jury was better fitted to determine this question. The jury would take into consideration the occasion on which the words were spoken; for instance, they might take one view of words spoken at a vestry meeting or a meeting of directors, and another of words uttered in the heat of a family squabble or of a quarrel in a shearing shed or a taproom or bar. Having regard to all the circumstances, the jury, with their knowledge of local elections and politics and their understanding of the manner in which speeches at elections are received by bystanders, came to the conclusion that these statements did not injure the respondent's character, and I see no reason to disturb their conclusion.

[11]

The plaintiff Willis brought an action against the defendant Lang for slander, spoken in the course of an election campaign. The member for the Bulli seat in the Legislative Assembly of New South Wales had died, and a by-election to fill that seat became necessary. Willis nominated as a candidate for the seat in the Labor interest, and claimed that he was the candidate duly selected according to the rules of the Australian Labor Party. One Sweeney also nominated as a candidate for the seat in the same interest, and he too claimed that he was the candidate selected according to those rules. Lang, who was the leader of the Labor Party in New South Wales, supported Sweeney, and declared that he and not Willis was the candidate duly selected and indorsed according to the rules of the Party. But in the course of speeches supporting Sweeney, Lang attacked Willis. The substantial charges made by Lang against Willis were that Willis' appeal was spurious and insincere, that he was an insincere politician, that he was fighting for himself and not for the electors, that he was a concealed enemy of the Labor Party and had the support of its adversaries, that his conduct in opposing Sweeney was an act of treachery to the rank and file and the leadership of the Labor Party, and that when a newspaper styled the Labor Daily of which Willis was director, was in difficulties, Willis applied for and accepted the office of Agent-General of New South Wales in London and followed his life-long practice of being well away when the bricks began to fall - that when the ship was sinking he rushed for the shore without warning his mates. Lang pleaded not guilty, traversed certain introductory averments and paid one shilling into Court, denying liability. But he did not justify his statements. And truth of the matters charged does not in New South Wales amount to a defence unless it was for the public benefit that the matters should be published (Defamation Act 1912, sec. 7). Nor did he at the trial suggest that the matters charged were fair comment upon a matter of public interest, or that they were spoken on a privileged occasion without malice. And he called no evidence. Yet the jury found a verdict for him. It is not surprising in these circumstances that the majority of the learned Judges of the Supreme Court ordered a new trial. But this Court nevertheless gave special leave to appeal, and the appeal now falls for determination.

[12]

It was said in support of the appeal that whether the words complained of were defamatory or not was a question of fact for the jury; and next, that the provisions of sec. 5 of the Defamation Act 1912 of New South Wales warranted the verdict. That section provides: - "(1) On the trial of any action for defamatory words not imputing an indictable offence, the jury under the plea of not guilty may consider whether the words set forth in the declaration were spoken on an occasion when the plaintiff's character was likely to be injured thereby. (2) If the jury are of opinion that the said words were spoken on an occasion when the plaintiff's character was not likely to be injured thereby, they may find a verdict for the defendant." Defamation or no defamation is doubtless a question for the jury, and it requires a strong case to set aside their verdict as against the weight of evidence. It is "from the nature of the subject ... always more difficult to interfere with the finding of a jury for a defendant in a slander action than in many others, inasmuch as opinion, formed on all the circumstances of the case, including the interpretation of the language used, is so large a factor in arriving at a result." But the verdict of a jury, even in a defamation action, is liable to be set aside if it be one to which "reasonable men could not or ought not to have come" (M'Inerney v. Clareman Printing and Publishing Co.[3]; Metropolitan Railway Co. v. Wright[4]; Australian Newspaper Co. v. Bennett[5]). This rule of reason must also be applied to the Defamation Act: the Act does not permit a jury to find, arbitrarily and capriciously, that defamatory words were spoken on an occasion when the plaintiff's character was not likely to be injured, if that be a conclusion to which reasonable men could not or ought not to have come. Now it was said at the Bar that Lang and Willis were engaged in a political contest, and that hard knocks must be accepted on both sides. But, even in such a contest, it is not true that the political and personal character and honesty of a man may be attacked with impunity. The substance of the words charged by Willis and spoken by Lang has already been set out. They are not seriously disputed, and are not capable of any but a defamatory meaning. The statements - which were made at public meetings and were well-considered and deliberate - necessarily injure the reputation and character of Willis, and a finding that they were spoken on an occasion when Willis' character was not likely to be injured thereby is beyond all reason, and a conclusion to which reasonable men could not or ought not to have come. The verdict was therefore rightly set aside by the Supreme Court and a new trial ordered.

[13]

There is also another ground which supports the order of the Supreme Court. According to English law, a defendant cannot, under the guise of giving evidence of the plaintiff's bad character, adduce evidence in chief of, or endeavour by cross-examination of the plaintiff and his witnesses to elicit, any facts which tend to establish the truth of the defamatory words, unless justification is pleaded (Gatley on Libel and Slander, 1st ed. (1924), p. 674; 2nd ed. (1929), pp. 736, 737, and cases there cited). But in New South Wales a practice has grown up - it is not necessary in the present case to say whether it can be supported - which allows a defendant to adduce evidence in mitigation of damages tending to establish the truth of the defamatory matter. Counsel for Lang, accordingly, sought to establish in cross-examination of one of the plaintiff's witnesses that Sweeney, and not Willis, was the selected and indorsed candidate according to the rules of the Australian Labor Party. Counsel for the plaintiff in re-examination put in those rules. Rule 90 provides that "in electorates where the local Branch or Council shall have failed to take the necessary steps as laid down by the rules, to select a candidate at least ... one month before the date of a by-election, such selection shall rest with the Executive"; and rule 92, that "when owing to the inaction of an electorate Council or electorate Branch, the selection for a by-election falls to the Executive, it shall select a nominee from amongst those nominated by local organizations." Both parties sought the ruling of the learned trial Judge upon the question whether Willis or Sweeney was the duly selected candidate according to the Party rules. He gave no decision until after counsel for Willis had addressed the jury. The proceedings in this connection, so far as material, are thus reported in the transcript of the trial: - "His Honor said that ... it seemed to him that under Rule 90 ... the Council of the electorate had failed to select a candidate one month before the date of the election. Rule 91 was a corollary to that, that in the case of proceeding to an election in the right time it rested with the Executive Council to call the Electoral Council together. Then the last one that Mr. Windeyer" - who was counsel for Willis - "relied on was, he thought, rule 92. In this case there were a number of candidates who had sent in their nominations. Apparently none of them were acknowledged by a local organization, and the Executive Council had a number of nominations in front of it, those nominations apparently being signed by members of the local council or local selection committee, and in his opinion they did the right thing under the circumstances in picking one of those. Consequently he ruled in the circumstances that as the local committee had failed within one month to make a selection it was the duty of the Executive to do it. Mr. Windeyer asked whether His Honor meant a selection within the Rules, and His Honor replied in the affirmative." Counsel for Lang had also, in cross-examination of Willis, extracted an admission that it would be a gross act of treachery and insincerity for one who was not a properly selected candidate to oppose a selected candidate at an election. The ruling of the learned Judge, coupled with this admission, was apparently used by counsel in his address to the jury, for the purpose of justifying the defamatory words - though there was no plea of justification - as well as for the purpose of mitigating damages. But the learned Judge did not correct this misuse of his ruling and the evidence. He told the jury that Willis was not the duly selected candidate, and that Sweeney was. And, while he did tell them that truth was not a defence and that they could only consider it in mitigation of damages, on the other hand he at no time warned them that his ruling had no bearing upon the question of defamation, and, indeed, he repeatedly suggested in his charge that in considering that question the jury might have regard to the truth of the matters alleged. In dealing with the accusation of treachery, the learned Judge said: - "Mr. Curtis pointed out that what was the act of treachery was opposing the selected Labor candidate. Whether you consider the truth of that is a matter for you, but it certainly does accuse Mr. Willis of being guilty of an act of treachery." Such a charge, which, as Halse Rogers J. observed, in all probability "had a great effect on the minds of the jury," could only mislead and confuse them.

[31]

At the trial of the action, the plaintiff's counsel opened to the jury that the slanders were untrue and malicious. He then called witnesses upon the issue of publication. One of these was cross-examined as to facts stated in the words complained of, and as to facts relating to the question - was Mr. Sweeney or Mr. Willis the duly selected candidate? In re-examination, the plaintiff's counsel put in evidence the rules of the Party. He proceeded to call evidence including that of the plaintiff himself to prove the incorrectness of facts stated in the defamatory words. The defendant's counsel did not raise the defence of fair comment. There was no plea of justification. Under the law of New South Wales in an action of defamation truth is not a defence unless it was for the public benefit that the defamatory matter should be published (sec. 7 of the Defamation Act 1912). At common law, in the absence of a plea of justification, the defendant cannot prove the truth of any part of the matter complained of, either as an answer to the action or in mitigation of damages (Speck v. Phillips[14]; Vessey v. Pike[15]; Bracegirdle v. Bailey[16]; Hobbs v. Tinling; Hobbs v. Nottingham Journal[17]). But it has long been the practice in New South Wales in actions of libel and slander to allow the defendant to show in mitigation of damages that the matter complained of is true (West v. Wigg[18]; Harper v. Bennett[19]). This practice arose because the statutory provision, that truth is no answer to the cause of action unless to publish the matter complained of be for the public benefit, was considered to involve an abrogation of the common law rule that the defendant shall not rely upon matters tending to prove truth, except under a plea of truth either to the defamation declared upon, or to so much of it as the defendant seeks to prove true. We are not called upon in the present case to decide whether the existing practice can be justified in principle. But the course which counsel took at the trial is explained by its existence. In seeking to disprove the truth of charges made against the plaintiff and of facts stated in the words declared upon, he was forestalling a case which it was open to the defendant to make in mitigation of damages. If he were able to prove, not merely that charges made against the plaintiff were without foundation, but that the defendant knew it, the malice which the jury might then infer would be a reason for their awarding heavier damages. If, at the trial, the Court had adopted an interpretation of the Party rules which supported the plaintiff's claim to be the duly selected candidate, this would have been no ground for supposing that the defendant knew or believed that the plaintiff's claim was well founded. Such a ruling by the Court would have been irrelevant to malice. On the other hand, a ruling that Mr. Sweeney was, upon the construction of the rules, the duly selected candidate might, perhaps, be capable of use by the defendant, but only as a matter tending to reduce damages. The plaintiff's counsel appears to have sought a ruling from the Judge that his client was the selected candidate. But the question was not decided until after his case had closed. The defendant called no evidence. In his concluding address to the jury the plaintiff's counsel claimed, as I infer, that the plaintiff was the selected candidate to the knowledge of the defendant, who, nevertheless, accused him of treachery to his party in standing. The defendant's counsel, before making his reply, then sought a ruling from the Judge that Mr. Sweeney was the duly selected candidate, and the learned Judge thereupon so ruled. In his cross-examination of the plaintiff, defendant's counsel had obtained an admission to the effect that for a member of the Party to oppose the duly selected candidate, after submitting himself unsuccessfully for selection would be an act of treachery. In his reply, the defendant's counsel made great use of this admission in combination with the Judge's ruling that Mr. Sweeney was the duly selected candidate. He pressed it upon the jury that, according to his own confession, the plaintiff had been guilty of the treachery the defendant had charged against him.

[32]

It is apparent that the course which the case had taken made it very likely that the jury would lose sight of the issues upon which the defendant's liability depended, namely, the defamatory meaning of the words declared upon and the likelihood of injury to the plaintiff's character upon the occasion when their publication occurred. The plaintiff having a very strong case upon these issues, so strong that, as I have said, a finding against him on either of them would, in my opinion, be unreasonable, made much capital out of matters which, as he considered, went to damages. One of these matters, the contention that he was and Mr. Sweeney was not the duly selected candidate, had been ruled against the plaintiff after his counsel had completed his address to the jury. The ruling, although it destroyed the effectiveness of much that had been put to the jury on behalf of the plaintiff was, nevertheless, irrelevant to his cause of action, the ingredients of which remained wholly unaffected. The defendant's counsel seized upon the ruling and employed it in a way that must have been very effective forensically, but nevertheless was legally inadmissible. In these circumstances it became peculiarly important that the jury should receive from the presiding Judge a direction which should recall or call their attention to the issues upon which liability depended, should define them clearly and should exclude from the consideration of them matters which, although looming so large in the course of the trial, were legally irrelevant to them and affected only damages. The learned Judge commenced his summing up with a sufficiently clear statement of the question for the jury: - "The main question for you," he said, "is whether the words that were spoken by the defendant were defamatory of the plaintiff." Again, "If they are defamatory, that is, if they are calculated to bring the plaintiff into hatred, ridicule or contempt and so injure his reputation, then you will proceed to the question of damages. Truth is not a defence. A good deal has been said in this case about the words being true. You can consider that only in so far as that may mitigate the damages. Truth is no defence at all, so you come back to the question of whether the words are defamatory."

[37]

In these and other passages of the summing up, the question of defamatory meaning is confused with the facts upon which the words complained of are founded. They convey to the jury that the defamatory character of the words is dependent upon or affected by their correctness in fact. In particular the decision of the Judge upon the question who was the selected candidate is given a relevance to the question of defamatory meaning to which in fact it was completely irrelevant. Moreover, much importance is clearly attached to it. That this treatment of the matter was not due to an attempt to deal at once with what affected both liability and damages is made certain by the fact that, after going through all the counts, his Honor said: - "There is the whole matter which is declared upon as being defamatory. It is for you to say whether it is defamatory. If you think it is, then you pass to the next part of the question, and that is what damages Mr. Willis has sustained." Beyond the preliminary definition of defamation as that which is calculated to bring the plaintiff into hatred, ridicule or contempt, there was nothing to guide the jury upon the issue of defamatory meaning, and there is much to mislead them. The learned Judge more than once put to them meanings undeniably defamatory and asked whether they were defamatory. For instance, he said: - "Mr. Lang, speaking from his position as leader of the Labor Party, says that he is a concealed enemy because although he is not selected he is still running as a labor candidate. Is there anything defamatory in putting it in that way?" Again, "There undoubtedly he refers to Mr. Willis as being a subtle and insincere politician trying to trade on their principles with regard to rank and file control. That is capable of a defamatory meaning. As I said at the beginning, you have to consider that in connection with all the circumstances of the case. There is the fight going on, and you will consider whether the words were uttered in a defamatory sense or whether they were only ordinary arguments."

[38]

Indeed, in relation to the passage accusing the plaintiff of an act of treachery to the rank and file and the leadership of the Party, his Honor, after stating that counsel had pointed out that what was the act of treachery was opposing the selected Labor candidate, said: "Whether you consider the truth of that is a matter for you, but it certainly does accuse Mr. Willis of an act of treachery." At the conclusion of the summing up, counsel for the plaintiff requested, but did not obtain, a direction that Mr. Sweeney was not and Mr. Willis was the selected candidate, and a direction that the question of the plaintiff's sincerity did not depend upon the construction of the rules. The jury found a general verdict for the defendant. In my opinion, that verdict ought not to be allowed to stand. There was a complete miscarriage in relation to the question of liability. The learned Judge did not put to the jury the question under sec. 5 of the Defamation Act 1912, except that at the end of his charge he remarked: - "It is open to you to find that they were uttered upon an occasion and in circumstances when the plaintiff's character was not likely to be injured. If you thought that you would find a verdict for the defendant." Up to that point, his direction appeared to exclude such a consideration. But, even if the provision had been adequately put to the jury, I do not think a verdict for the defendant under it could be supported. The sole remaining issue submitted upon which liability could turn was defamatory meaning. Upon that issue, the jury, if they followed the Judge, were completely led astray by the introduction of irrelevant considerations and erroneous standards. Jordan C.J. based, in some degree, his dissenting view that a new trial should not be ordered, upon the immateriality of the interpretation of the rules to the question of the defamatory character of the words complained of, including those charging insincerity. I agree that in reason the two things are entirely unconnected. But in view of the course of the trial and the summing up, it is a consideration which I regard as requiring an opposite conclusion. To my mind it provides an explanation of the verdict. A finding that none of the words declared upon bore a defamatory meaning could scarcely be arrived at, except upon some misunderstanding or under the influence of irrelevant considerations. What was emphasized by defendant's counsel, and afterwards dealt with as relevant to defamatory meaning by the learned Judge, cannot be supposed to have been rejected by the jury from its consideration of the issue. But a ground greatly relied upon by the defendant in support of the verdict is that the plaintiff's counsel by his conduct of the case contributed to what occurred, and that he did not make the appropriate objection at the trial. In my opinion, what he did cannot be regarded as actively contributing to the misuse made of the question, who was the duly selected candidate, or of any other matters in evidence. It nowhere appears that he used any such matters upon the question of defamatory meaning. On the other hand, the Judge having ruled against him on the question of the selected candidate after he had addressed the jury, his client was peculiarly entitled to the protection of the Court from a misapplication of that ruling. The question whether the plaintiff is precluded on the ground that his counsel failed at the trial to take the appropriate objections depends upon other considerations. Rule 151B of the General Rules of the Supreme Court provides that no direction or omission to direct or decision as to the admission or rejection of evidence given by the Judge presiding at the trial shall, without the leave of the Court, be allowed as a ground for such notice of motion, unless objection was taken at the trial to the direction, omission or decision by the party on whose behalf the notice has been filed. The plaintiff's counsel specifically objected to the ruling that Mr. Sweeney was the duly selected candidate as erroneous. In my opinion it was erroneous. The fact that being erroneous it was also misused by the learned Judge does not detract from the objection, but adds another objection. It does not deprive the party of the objection he took. He cannot at one and the same time be precluded from asserting that the Judge's ruling was irrelevant to the issue upon which it was used, because he did not raise that objection, and from relying upon the objection which he did raise to the correctness of the ruling because the ruling was irrelevant. But in any case this is not a case where there is a specific misdirection or non-direction. The whole trial miscarried because there was a disregard of the legal standards of liability. In the Supreme Court counsel for the defendant, upon the new trial motion, submitted that the publications complained of were privileged. The proposition appears to me to be untenable that election speeches made to a large audience of unidentified persons are privileged because the speaker deals with matters in which the electors have an interest. It was suggested that the last speech complained of was shown to be made in answer to an attack upon the defendant by the plaintiff, and that privilege attached to it for this reason. It is sufficient to say that the evidence does not support the contention.

[56]

In April 1931, the respondent, who at that time was the managing director of the newspaper and held office in a Ministry led by the appellant, was appointed Agent-General of New South Wales in London. He retired from political office, and tendered his resignation as managing director of the newspaper; but instead of accepting it the directors of the newspaper granted him leave of absence while he was Agent-General, and appointed Mr. Tyrell, who was a director, to act as managing director. The respondent did not draw his salary as managing director while he was a member of the Government, and at periods when the newspaper was in difficulties he did not draw it in full. The respondent's appointment as Agent-General was terminated by a Ministry which supplanted that led by the appellant. The respondent returned to Sydney and raised with the Premier in the new Ministry the question of compensation for loss of office. When he informed the appellant of this interview the latter advised him against being involved in expensive litigation. The respondent also saw Mr. Tyrell in anticipation of resuming his position as managing director, but was not invited, nor was he able, to do so. At the trial the respondent was asked the question "Have you tried to do so?" and he answered "I have never tried personally for reasons that happened with Mr. Tyrell and Mr. Lang." The evidence continued "Q. Something passed between you and Mr. Tyrell which made that impossible?" "A. Yes." However, the respondent continued to be a director, and he and the appellant attended directors' meetings. At one of these meetings, held soon after his return, he became aware that Labor Daily Ltd., the proprietor of the newspaper, gave a debenture to the appellant in his own name to secure the repayment to him of large sums of money which he had provided to enable the newspaper to carry on. These sums were advanced before and after the respondent's appointment as Agent-General. Some time before such appointment, and when the respondent was managing director, the appellant expressed a wish to get a debenture for advances already made, but the respondent dissented and that question was never discussed at any meeting of the directors before the respondent went to London. When the respondent was in London the company's bankers pressed the company to reduce its overdraft. The appellant supplied more funds to meet this emergency, and in February 1923, the directors, some of whom were associated with the coal miners' union, agreed to give the appellant a debenture to secure the repayment of all the money which he had advanced. It seems that the respondent's view was that this step put the appellant in control of the newspaper. The respondent gave an account of a statement which the appellant made at a meeting of the council of the Miners' Union on 25th May 1933. This statement was made very soon after the respondent had opened his campaign as a candidate at a by-election to elect a member of the Legislative Assembly of New South Wales for the electorate of Bulli. The respondent's account of the statement is as follows: - "Q. In regard to the Miners' Council meeting on the 25th, who else were present besides Mr. Lang? A. The whole of the miners' delegates from the different States, and on invitation Mr. Lang, Mr. Tyrell, and Mr. McGrath, the directors of the Labor Daily, Mr. Teece, Mr. Rees, Mr. Hoare and I, and I believe Mr. Cullen was there. They came there to ask the miners if they could find £10,000 to take the place of the Bank. The discussion drifted on to the question of Mr. Lang's debenture. He made a statement there concerning the putting of his money into the paper. He said at a certain date - I believe in May or June, 1931, while I was still away - that they had received a letter from the Bank asking them to reduce the overdraft, and giving them short notice to do it, that he attended the directors' meeting, and some suggestion was made at the meeting first by Mr. Hoare as to whether the miners would find the money, and he said no, that the miners were not going to find another penny, that it was time for them to appeal to other unions. At any rate, none of them could show a way of getting the money. Mr. Lang said that the miners had been appealed to, and Mr. Hoare said then that these and other unions had refused. Then Mr. Lang said Leave it to me and I will see what I can do in connection with the matter, and that afterwards he saw the manager who was acting for the bank at the time, I understood that it was a locum in charge there, the manager being away on holidays - and that he had failed to do any good with the gentleman who was in charge, but that he got someone to bring the manager back to try and use his influence with him. However, he failed; they could not get them to agree to stand it over, and that he then agreed to find this additional money over a period of 5 or 6 months on the conditions that he had the right to overhaul the staff, dismiss certain people, and generally to reconstruct the staff there to enable him to get his money back. In answer to another question about his debenture he said Well, if I have to use trust money I must see that I am properly secured. The discussion went on through that day to the following morning, but Mr. Lang did not come the following morning. That was in answer to a question why he insisted on a debenture. I had already stated that I was against giving a debenture, and that was the reason given by Mr. Lang that he wanted to have a debenture properly secured. They gave all the employees at the Labor Daily notice. From a list revised by him certain people were struck out and other people were appointed in their places, and that they had reduced their expenditure. I have checked it up and found there is very little difference. That is what Mr. Lang said."

[58]

Some time after the company granted the debenture to the appellant, the council of the miners' union gave instructions for the preparation of a report as to the state of its securities for the advances which it had made to enable the paper to be carried on. On 7th April 1933 they received a report which stated that "our directors did not exercise sufficient care when they voted to grant a debenture to J. T. Lang to take precedence of the agreements entered into by the company and the federation, thereby giving us no protection." The report also contained a recommendation that the directors of Labor Daily Ltd. "be requested to immediately request Mr. Lang to agree to cancel this debenture." The respondent said that he was asked by the council of the miners' federation to act for them in having these recommendations carried out. The appellant received a copy of the report, but the directors of the company did not deal immediately with the miners' request for the cancellation of the debenture, as they had become concerned as to what should be done in the matter of a petition for the winding up of the company presented by a George Buckland, who had obtained a substantial verdict against the company. The report appears to have been dealt with by the directors at a meeting held very soon after the electorate of Bulli became vacant, and while Buckland's judgment was still unsatisfied. The respondent gave evidence that the appellant contended that the advances made by the miners "did not come before him and that he came next to the bank." The directors would not agree to the proposals in the report. When the directors were discussing the situation created by the petition for winding up, the appellant, according to the respondent's evidence, supported the report of a committee of directors, who proposed that the company's bank should be asked "to come in and then be bought out." The respondent deposed that the appellant said "that the bank should come in, that he (the appellant) should find £10,000 to clear the bank out, and that he would come in with his debenture, that he should be in charge and that the paper should be sold." The respondent explained that the sale was to be made "by the debenture holder, the only one, and the company reconstructed, and further that the shareholders in unions and others that were in that arrangement be made to give them another debenture or shares." The proposal was opposed by the respondent, and the directors agreed to a motion proposed by him, in substance instructing the company's solicitor to give security in respect of the petition for winding up pending an appeal against the verdict, and that endeavours should be made to bring about a settlement. A settlement was effected and the bank advanced to the company the amount which Buckland finally took in settlement of his demand.

[60]

The member for Bulli in the Legislative Assembly in New South Wales died on 3rd May 1933, and the local electorate council met three days afterwards. It decided to invite nominations from persons qualified to contest "the selection." Under the rules nominations must be signed by not less than six members of the association or of affiliated organizations resident in the electorate. At the next meeting of the electorate council, which was held on 16th May, all nominations which had been received were handed to the general returning officer, who is also attached to the central executive. The date fixed for the by-election rendered it impossible to comply with rule 101 or with rule 111 which provides that no motion to fix the date for the commencement of a ballot for the selection of a candidate shall be entertained except at a special meeting called for that purpose, and that in the case of a by-election seven days' notice of such meeting shall be advertised in the Labor Daily and a local newspaper. But it does not appear that it was impossible to comply with rule 114 which says "Immediately upon nominations being called the branch secretary shall forward to the general secretary a supplementary list of members and duplicates of tickets issued to persons who have become members up to twelve months prior to the date of calling for nominations, and it shall immediately instruct the credentials committee to draw up a certified roll of members, one copy for use in branch polling booths, and another to be forwarded to the general secretary." The secretary of the electorate council said in evidence that this rule was not complied with. The nominations of the candidates, of which there were a number, were not endorsed by the central executive as provided by rule 109, which provides that all such nominations shall be submitted to the executive for indorsement before going to the ballot. The electorate council nevertheless proceeded to hold a ballot to select a candidate. On the 17th May before the votes cast in the ballot were counted, the central executive chose Mr. Sweeney, who was associated with the miners' union in the electorate, as the Labor Party's candidate. He was one of the persons nominated for selection in the ballot which was conducted by the electorate council. The decision of the executive that he was to be the Party's candidate was communicated to the electorate council, but the counting of the ballot was proceeded with. The respondent won the ballot. A meeting of the electorate council was held at which the respondent was present by invitation of the secretary and was informed of the result of the ballot. In answer to a question whether he was prepared to stand "as the selected candidate in view of what has happened in Sydney," he replied "If it is the wish of the council and you want me to stand, then I will stand." The electorate council expressed its wish that he should stand.

[69]

The conclusion at which the jury was required to have arrived before returning a verdict for the defendant in this action was that the words were spoken on occasions when the respondent's character was not likely to be injured by them. Sec. 5 adds to the occasions existing at common law on which the person who publishes a slanderous statement not imputing an indictable offence does not incur liability to pay damages to the person of whom the statement is published. But the statutory immunity is not made dependent on the existence of any common interest between the defendant and his listeners; it is not destroyed by malice. The reason for the immunity is not founded on grounds of public policy; while the Judge decides whether the occasion is privileged at common law, sec. 5 remits to the jury the determination of the matter on which the immunity is founded. In the present case the jury heard the respondent give evidence, and were instructed by his examination and cross-examination as to his career and to the causes which he had publicly supported and the views which he had publicly expressed. Evidence was given from which the jury could form an idea of the kind of questions for which the respondent had made the by-election his battleground. Persons who were present at the meetings at which the statements complained of were made, gave evidence as to other statements made by the appellant in these speeches, and in some cases as to the manner in which they were influenced by what the appellant said. Although the statements were made with the intention of defeating the respondent, and perhaps were untrue in some respects, malice if found does not disentitle a defendant to have recourse to sec. 5. The respondent relied upon oral publication to persons present at the election meetings and also at the public meeting held at Cessnock, which appears to have been attended mainly by miners. I am unable to say that a jury using its knowledge of men and affairs acted unreasonably in determining upon the evidence before it that the oral publication of the statements in the declaration on the occasions in question was not likely to injure the respondent's character, and in returning a verdict for the defendant.

[71]

The parties at the trial combined in requesting the learned Judge to rule whether the respondent or Sweeney was the selected candidate of the Labor Party. The respondent contended that he filled that rôle, the appellant that Mr. Sweeney did so. There is much weight in the comment of Halse Rogers J. who said in the Full Court: "It is to be remembered that one of the matters much canvassed in the by-election was the control exercised or claimed by the executive, and the parties to this defamation action seem to have transferred certain issues from the political arena to the Court." In compliance with the request of the parties the learned Judge ruled that Mr. Sweeney was the selected candidate of the Labor Party. The appellant's contention is that this ruling was correct, as the executive had power in the events which happened to make the selection under rule 90. This rule is as follows: "In electorates where the local Branch or Council shall have failed to take the necessary steps as laid down by the rules, to select a candidate at least three months before the expiration by effluxion of time of a Parliament, or one month before the date of a by-election, such selection shall rest with the Executive." The respondent's contention before us was that neither he nor Mr. Sweeney was selected according to the rules. He abandoned the ground, which he took in his notice of appeal to the Supreme Court and at the trial, that he was duly selected under the rules of the association. The respondent contended that rule 90 did not extend to permit the executive to select a candidate unless the local body had made default in making a selection one month before a by-election, and that no such default had occurred, because the by-election was fixed for a date which did not allow of a selection being made at least one month beforehand. It may be observed that although the electorate council called for nominations from members in order to select a candidate, nothing was done pursuant to rule 114, which aims at securing the immediate compilation of a roll of members of the association qualified under the rules to vote at a selection ballot. If the condition precedent to the right of the executive to make a selection had occurred, there can be no doubt that the ruling of the trial Judge was literally correct. But if the condition precedent to the making of a selection by the executive, mentioned in rule 90 or any other rule, had not been fulfilled, the solution of the question is not, as the respondent contended, that there was a casus omissus, and that neither the respondent nor Mr. Sweeney was entitled to be called the selected and indorsed candidate. The rules, it is true, set up machinery for the selection of a parliamentary candidate by the local body, and in certain events by the executive. But if that machinery cannot work, and those events do not happen, the result is not that the executive, which has the power of indorsing candidates for selection, is forbidden to indorse one of the candidates who have been nominated and to choose him to be the party's candidate in the constituency, while declining to indorse the others. The real significance of the learned Judge's ruling in favour of Mr. Sweeney's candidature was that it declared him to be the accredited party candidate. It is indisputable that in fact he was. He was the only candidate indorsed and chosen by the executive to contest the election, and even if the learned Judge wrongly interpreted the express provisions of the rules relating to the powers of the executive to select a candidate, his decision, which was in effect that Sweeney held the party's credentials, accorded with fact. Reference has been made to rule 131 which says that members elected to Parliament under the auspices of the Australian Labor Party, State of New South Wales, shall form a distinct parliamentary party, and rule 132 is in these terms: "No member of Parliament other than an indorsed member of the A.L.P., State of N.S.W., shall be admitted to membership of the Parliamentary Labor Party." Mr. Sweeney was qualified under this rule if he secured election. Although the respondent contended he was the "selected candidate," he did not claim that he would be qualified, if elected, to be admitted to the Parliamentary Labor Party. Although the question whether Sweeney or Willis was the duly selected candidate was immaterial on the issue of defamation or no defamation, as the respondent joined with the appellant in seeking a ruling on that he cannot complain that it was given; the ruling was in my opinion substantially correct. But assuming the contrary, the summing up was, in my opinion, calculated to prevent the jury from being influenced on the issue whether the words were defamatory or not, by the Judge's ruling in favour of Sweeney. The Judge told the jury that truth was no defence, and he also addressed them in these terms: - "Legally on my ruling Mr. Willis was not the selected one, but those rules would have to be construed, and perhaps someone else might put a different construction on them. He ran, as he contended, as the Party candidate. On the other hand, Mr. Lang said No, you are not the Party candidate, you have not been selected properly; Mr. Sweeney is, and on that ground at any rate he treated Mr. Willis as being guilty of an act of treachery in running against the selected candidate." This statement conveyed to the jury, as I read it, an intimation that the rules were not so clear that it would not be open to the respondent or some other person to say that the respondent was duly selected according to the rules.

At a glance

Court

Decision date

Before

Source

Judgment (94 paragraphs)

Lang v Willis [1934] HCA 51; (1934) 52 CLR 637 (28 November 1934)

Parties

Cases Cited (1)