Lovepay v Son

Lovepay v Son - [1938] HCA 28 - HCA 1938 case summary — Zoe

[93]

of any relevant matter in reply undoubtedly a privilege would exist. The town clerk, as an appropriate officer of the municipality, would be entitled, upon that supposition, to a qualified privilege for the publication of any statements in answer tending to justify or explain the course taken, or remove or mitigate the effect of the attack or criticism. If the criticism had been addressed to the public at large and the communication had not been confined to specific individuals, the privilege would cover a publication of the answer in the news- papers or in any other manner that would reach the public generally. A privilege would be of no value if the means of exercising it were not also protected. If the party attacked is given a privilege to reply through the public press, the publisher of a newspaper who allows the use of his columns for the purpose must also enjoy an attendant privilege. Thus, if a prior attack had been made publicly upon the municipal council's treatment of a relief worker, the publisher of a newspaper would obtain protection for the publication in his journal of any relevant reply the town clerk might honestly make. But the privilege of the newspaper would arise out of and depend upon that of the town clerk, or, perhaps more strictly, of the municipal council, as the party attacked and entitled to reply. The reason for the privilege of the newspaper publisher is that it is right and for the common convenience and welfare of society that he should lend the aid of his newspaper to the party who is entitled publicly to repel the attack or answer the criticism. Adam v. Ward (1) is now the leading authority for privilege of this description. But a very interesting example of its application is provided by the case of Bowen-Rowlands v. Argus Press Ltd. (2), decided by the Court of Appeal, which is mentioned by Swift J. in Standen v. South Essex Recorders Ltd. (3). The plaintiff in that case was the author of a book of reminiscences in which some stories were told about Bradlaugh. The plaintiff sent a copy for review to The Observer. The stories were repeated in the account of the book which appeared in that journal where Bradlaugh's daughter read them. She objected to the stories and, to vindicate her father's memory, she wrote to the press a letter denying their correctness in which she reflected

[107]

confusing consent to the publication of what is complained of as defamation with privilege. Speaking of Chapman v. Ellesmere (1), he writes (p. 318, note 1): ' Any expressions in the judgments which might indicate that the parties could create qualified privilege by agreement cannot be supported, for it is the court alone which settles whether qualified privilege exists or not." Again (at pp. 288, 290): "If the plaintiff expressly or impliedly assents to the publication of matter which is true on the face of it, the defendant is not liable; and this is so even if it appears that some persons' may interpret the statement in a sense much more prejudicial to the plaintiff than is warranted by the plain meaning of the words, It should be observed that this defence, which has also been regarded as an instance of volenti non fit injuria (Slesser L.J., i Chapman v. Ellesmere (2), contra, Romer L.J. (3)) has noth whatever to do with the defence of qualified privilege. Emphasis of this is necessary because some expressions in Chapman v. Bilesme (4) might give the contrary impression. As will be seen, when come to deal with it, privilege, if it is established, negatives liability for any statement whether it is prima facie untrue or is untrue only by innuendo, and whether consent has been given to the publication or not; or, to put it in another way, privilege, truth and consent are three entirely separate defences. Another distinction between privilege and consent to publication is this. It is for the law to say whether privilege in any form exists. Parties cannot by mere agreement create it. But they can, as they did in Cookson y. Harewood (5), agree that one of them shall be entitled to publish the truth about the other, and such an agreement will exclude liability for defamation." But, notwithstanding this clear distinction, there is, I think, a place at which the course that has been taken by the party com plaining of defamation, while not amounting to consent to its publica tion, yet furnishes an element which completes a foundation for a privilege against him.

At a glance

Court

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Judgment (114 paragraphs)

Parties