Lee v Wilson & Mackinnon [1934] HCA 60;

Lee v Wilson & Mackinnon [1934] HCA 60; - HCA 1934 case summary — Zoe

[8]

The actions for libel brought by Detectives A. L. and Clifford Lee were heard together in the County Court. Evidence was led by each appellant to show that people who knew him and his position in the police force understood the words in a sense defamatory of him. Judgment was entered for each appellant for £50. On an appeal to the Supreme Court of Victoria the judgment was set aside and a new trial ordered. It appeared that during the trial the defendant sought to establish that, in the course of the police inquiry, counsel and witnesses referred to First Constable Lee of the Motor Registration Branch as Detective Lee, but the evidence was rejected. The learned Judges of the Supreme Court were of opinion that this evidence was admissible, because it is necessary to prove in an action for libel that the words were written "of and concerning the plaintiff," that is, that the words were aimed at or intended to refer to the plaintiff. Whether that conclusion is right or wrong depends upon the principle underlying the decision of the House of Lords in E. Hulton & Co. v. Jones[1]. But it is desirable in the first place to refer to the judgment of Farwell L.J. in the same case when it was before the Court of Appeal[2], for the learned Judges of the Supreme Court rely upon that judgment, and also upon the fact that its terms were substantially approved in the House of Lords by two of the noble and learned Lords. The judgment of Farwell L.J. recognizes, I think, that the element of intention is essential to an action of defamation[3]. But the gist of the judgment is in the following passage[4]: "So the intention to libel the plaintiff may be proved not only when the defendant knows and intends to injure the individuals, but also when he has made a statement concerning a man by a description by which the plaintiff is recognized by his associates, if the description is made recklessly, careless whether it hold up the plaintiff to contempt and ridicule or not." Intent may be real, or imputed. "The libeller is not liable to the plaintiff unless it is proved that the libel was aimed at or intended to hit him; the manner of proof being such as I have already stated"[5]. "It always was and is still open to him to prove the surrounding circumstances, so as to show that, although the words appear to refer to the plaintiff, that is not their true intent and meaning"[6]. An illustration is given at page 481: "If the libel was true of another person and honestly aimed at and intended for him, and not for the plaintiff, the latter has no cause of action, although all his friends and acquaintances may fit the cap on him." Intent, as I understand the learned Lord Justice, should not in such a case be imputed to the defendant. In the Court of Appeal there was some divergence between the judgments of Fletcher Moulton L.J. and Farwell L.J., but it is merely, I think, that the former required a real intention, to found liability for defamation, whereas the latter was of opinion that the intention might be imputed as well as real. It does not appear to me that the decision of the House of Lords denies that intent is still necessary in actions of defamation, and the view of Farwell L.J. is accepted, that intent may be imputed as well as real. Indeed, the Lord Chancellor observed: - "Just as the defendant could not excuse himself from malice by proving that he wrote it in the most benevolent spirit, so he cannot show that the libel was not of and concerning the plaintiff by proving that he never heard of the plaintiff. His intention in both respects equally is inferred"[7]. But, in my opinion, the decision propounds the rule of law that intent to defame should be imputed to a defendant if he uses "language which others knowing the circumstances would reasonably think to be defamatory of the person complaining of and injured by it." In line with this view is the judgment of Scrutton L.J. in Cassidy v. Daily Mirror Newspapers[8]: "I agree with the view expressed arguendo by Sir Montague Smith in the case of Simmons v. Mitchell3(1880) 6 App. Cas. 156, 158.: The Judge must decide if the words are reasonably capable of two meanings; if he so decide, the jury must determine which of the two meanings was intended; and by intended I understand that a man is liable for the reasonable inferences to be drawn from the words he used, whether he foresaw them or not." "If he publishes words reasonably capable of being read as relating directly or indirectly to A, and, to those who know the facts about A, capable of a defamatory meaning, he must take the consequences of the defamatory inferences reasonably drawn from his words." (See also Youssoupoff v. Metro-Goldwyn-Mayer Pictures Co.[10].) Russell L.J., now Lord Russell of Killowen, in Cassidy's Case[11], thus states the result of the decision in E. Hulton & Co. v. Jones[12]: "Liability for libel does not depend on the intention of the defamer, but on the fact of defamation." This statement is accurate enough for practical purposes, but is perhaps open to verbal criticism as a statement of legal principle. The judgment of Farwell L.J. left the imputation of intent dependent in some degree upon proof, whereas the rule adopted in the House of Lords is definite and rigid in its terms.

[15]

This appeal from that order raises for our decision the substantial question whether, in an action of libel by a plaintiff who corresponds to the description contained in the defamatory matter published by the defendant, and who has been indentified with the description by readers knowing him, it is a defence that in fact there is another person who also sufficiently corresponds to the description, and who is actually the person intended to be referred to by the author of the libel, or by the defendant who published it. The decision of this question appears to me to depend upon the degree to which, under the influence of the judgment in E. Hulton & Co. v. Jones[17], liability for libel has come to depend upon the actual operation of the words published as a disparagement of the plaintiff's reputation. It is the publication, not the composition of a libel, which is the actionable wrong. Often the person sued for publishing is not the writer. The injury done by a libel arises from the effect produced upon its readers. These considerations naturally led to a rigorous application to libels of the rule that the meaning of a document should be determined independently of the actual intention which the writer entertained. The acceptance of a criterion of liability which adopted, not the intention actuating the writer, but the understanding produced in the reader, was aided by the rule, which can be traced back to an early time, that for the interpretation of a libel evidence could be received of particular circumstances affecting its meaning, and of the actual interpretation which persons conversant with those circumstances affixed to it. But in all documents a marked distinction exists between ascertaining what are the ideas conveyed concerning the persons or physical objects referred to, and identifying the persons and objects so referred to. The latter process consists in correctly associating an existing person or thing with a description contained in the document. Where the description or means of identification consists in or includes proper names, it must often be the case that more than one person can be found to answer it. If the document must have a legal effect on one only of these persons, no means exists of determining to which it refers, except by an inquiry into the contents of the writer's mind. But until two or more are found who do answer the description, or to whom it applies indifferently or in an equal degree, no occasion arises for such an inquiry. Ubi in verbis nulla ambiguitas, ibi nulla occurrit voluntatis quœstio. The cause of action consists in publication of the defamatory matter of and concerning the plaintiff. It might be thought, therefore, that, in any event, this warranted or required some investigation of the actual intention of the publisher. But his liability depends upon mere communication of the defamatory matter to a third person. The communication may be quite unintentional, and the publisher may be unaware of the defamatory matter. If, however, the publication is made in the ordinary exercise of some business or calling, such as that of booksellers, newsvendors, messengers, or letter carriers, and the defendant neither knows nor suspects, nor using reasonable diligence ought to know or suspect the defamatory contents of the writing, proof of which facts lies upon him, his act does not amount to publication of a libel. It is scarcely consistent with this doctrine to look for the publisher's actual intention, even for the purpose of applying the libel to one to the exclusion of another or other persons, either of whom the description it contains would effectively denote. If it be necessary to find which, of several equally described, was the person actually meant, the intention of the writer, not of the publisher, would appear to govern the answer. An actual intention, whether in writer or publisher, of referring to the plaintiff cannot be treated as irrelevant. Indeed, where the words are capable of relating to the plaintiff, but it is uncertain whether they actually do so, the fact that they are used with him in view appears to be decisive. The reason may be that if words are capable of being read as referring to the plaintiff, and are intended to be so read, it must be presumed in his favour that they actually were so read.

[18]

These passages express the grounds of the decision of the House of Lords, and, in my opinion, they express a test which makes the tort of libel consist in the operation of defamatory matter as an actual disparagement of the plaintiff's reputation. This principle logically applied appears to me to require the conclusion that a description on its face designating one person only may, nevertheless, be a libel of two or more, if, being capable of denoting each of them, it is reasonably understood by one group of people to refer to one of them, and by another group to another and so on. No doubt there was much to be said against the adoption of the principle, but, having been adopted, it gives rise to consequences which may not be avoided. Even if some departure occurred from the older views of the grounds of liability for defamation, it was a development readily arising from the already established rules for ascertaining the meaning of defamatory writings, and determining the liability for their publication, the rules I began by describing. It is true that hitherto two persons have not in fact recovered in respect of defamatory matter purporting to deal with the character or conduct of one person only. But long before E. Hulton & Co. v. Jones[21], Holmes J. had said: - "On general principles of tort, the private intent of the defendant would not exonerate it. It knew that it was publishing statements purporting to be serious, which would be hurtful to a man if applied to him. It knew that it was using as the subject of those statements words which purported to designate a particular man, and would be understood by its readers to designate one. In fact, the words purported to designate, and would be understood by its readers to designate, the plaintiff. If the defendant had supposed that there was no such person, and had intended simply to write an amusing fiction, that would not be a defence, at least unless its belief was justifiable. Without special reason, it would have no right to assume that there was no one within the sphere of its influence to whom the description answered. ... So, when the description which points out the plaintiff is supposed by the defendant to point out another man whom in fact it does not describe, the defendant is equally liable as when the description is supposed to point out nobody. On the general principles of tort, the publication is so manifestly detrimental that the defendant publishes it at the peril of being able to justify it in the sense in which the public will understand it. ... If an article should describe the subject of its statements by two sets of marks, one of which identified one man and one of which identified another, and a part of the public naturally and reasonably were led by the one set to apply the statements to one plaintiff, and another part were led in the same way by the other set to apply them to another, I see no absurdity in allowing two actions to be maintained" (Hanson v. Globe Newspaper Co.[22]).

At a glance

Court

Decision date

Before

Source

Judgment (59 paragraphs)

Lee v Wilson & Mackinnon [1934] HCA 60; (1934) 51 CLR 276 (19 December 1934)

Parties

Cases Cited (1)