Mowlds v Fergusson [1940] HCA 38

High Court of Australia|1940-07-01|Before: Williams JJ, Bavin J, Halse Rogers J

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

H.C. or A, Defamation - Libel - Qualified privilege - Police officer - Report in course f 1940. Publication to former superior officer.

Pa The respondent, a senior police officer, was severely criticized by

in 1934 but bad since resigned. In 1934 the respondent had ob advice and referred to him.

Held that the publication to C. was on an occasion to which qualified attached.

Decision of the Supreme Court of New South Wales (Full Court), point, reversed.

An action for defamation was brought in the Supreme New South Wales by William George Mowlds against George Fergusson in which the plaintiff claimed damages in the s £3,000.

'At the first trial of the action the plaintiff succeeded in o a verdict upon both counts contained in the declaration b t Full Court of the Supreme Court set these verdicts aside and

verdict for the defendant upon one of the counts and upon the 0 ordered a new trial: Mowlds v. Fergusson (1). Leave to from this decision was refused by the High Court (2). defendant was an inspector of police and the libel was a report by him in 1937 in his official capacity to the Metropolitan intendent of Police, his superior officer, under a direction jing from the Premier of the State. The plaintiff supplied particulars which stated that the publica- relied upon were made to the Premier, the Chief Secretary, Commissioner of Police, the Metropolitan Superintendent of and two sergeants of police. At the conclusion of the evidence at the second trial the plaintiff it and obtained leave to rely upon a further publication of the It was a publication to a former Commissioner of Police, though he had been concerned in his official capacity with the ers upon which the defendant was directed to report, had in meantime retired from office. The judge before whom the ond trial took place ruled that this publication also was privileged, 'ruling the correctness of which the plaintiff contested. No substantial issue remained except whether the privilege had been troyed by express malice and the case went to the jury upon 'issue of malice and upon that alone. 'The jury returned a verdict, in favour of the defendant. | motion for a new trial made by the plaintiff on several grounds dismissed by the Full Court of the Supreme Court. Jordan C.J. d Bavin J., Halse Rogers J. dissenting, held that the publication of the report to the retired commissioner was not the subject of any rivilege but the court unanimously held that the consequences not such as to warrant the ordering of a new trial. om that decision the plaintiff appealed, by leave, to the High

KO, (with him Hutton), for the appellant. The occasion publication of the report to the retired commissioner of police not privileged. At the time of the publication he did not have ny official status ; he was merely a member of the general public. did not have any real interest in the report (Watt v. Longsdon }); his interest ceased upon his retirement from the police force ckeson v. Hilliard (4); Goslett v. Garment (5) ).

fi) (aR 40 SR. (NSW. 8115 57) (1930) 1 KB, 190, i y.N."(N.S.W.) 20. (4) (1874) L.R. 9 Ex. 79.

(2) (1939) 62 CLR. 750, (5) (1897) 13 TLR. 391,

Bradley K.C. (with him Webb), for the respondent. The publica- _ tion of the report to the retired commissioner was a privileged occasion. Having regard to his close association with the respondent, - the report and its subject matter, the mutual interest and duty continued notwithstanding his retirement. The test is: Has one an interest in giving the information and the other an interest in receiving it ? (Watt v. Longsdon (1) ; Toogood v. Spyring (2); Adam - v. Ward (3) ). In the circumstances there was reciprocity of interest in the retired commissioner (Laughton v. Bishop of Sodor and Man (4); Norton v. Hoare [No. 1] (5) ). The question was one for the trial judge to decide (Whiteley v. Adams (6) ). Even if the ruling of the trial judge is wrong the matter is not such as would justify a new trial, because, if successful, the appellant would only be awarded nominal damages (Griffiths v. Johnson (7); Sunkissed Bananas (Tweed) Ltd. vy. Banana Growers' Federation Co-operative Ltd. (8) ).

Srarke J. Appeal from the judgment of the Supreme Court of New South Wales, in an action for defamation brought by the appellant against the respondent, dismissing a motion to set aside a verdict for the respondent on the second trial of that action and to enter a verdict for the appellant, or that a third trial of the action be granted. The defamatory words relied upon were contained in a report which the respondent, who was an inspector of police, made in 1937 to the Metropolitan Superintendent of Police, his superior officer.

Royal Commissions had been issued by the Government of New South Wales in 1936 to inquire whether certain members of the - police force had deliberately "framed" men for starting-price betting offences, whether false evidence had been given by members of the police force and police agents to procure convictions for betting offences, and whether innocent persons known to be innocent had been arrested and charged by members of the police with betting offences. The commissioner, in a report made in 1936, stated that counsel who appeared before the commissioner had made some very

(1) (1930) 1 K.B., at p. 151. (6) (1863) 15 C.B.N.S. 392, at p. 418 (2) (1834) 1 Cr. M. & R. 181 [149 E.R. [143 E.R. 838, at p. 848].

1044]. (7) (1903) 3 8.R. (N.S.W.) 107; 20 (3) (1917) A.C. 309. W.N. (N.S.W.) 40.

comments upon the respondent, and that he himself was e to understand either the conclusions at which the respondent d, or the reasons which he put forward for arriving at them in tlier report which the respondent had made in 1934 in relation complaint by the appellant against the actions of the police in ding his shop in connection with starting-price betting. This rt of the commissioner's report was hard upon the respondent unfair to him, for he was, as the commissioner said, away from ralia and had no opportunity of being heard. The Premier of State, after the presentation of the commissioner's report, ded a memorandum to the Commissioner of Police as follows : you please obtain from Inspector Fergusson a report both h respect to the course taken in his investigation and the terms report re the 'Mowlds Case' in the light of the matters ned in the findings of Judge Markell and of the relevant in counsel's address referred to by the judge in his " This was communicated to the respondent, who then ed to his superior officer the report in which, as already tated, the defamatory words relied upon in this action are contained. ill another Royal Commission was issued in 1937 for the purpose 'examining the respondent and his inquiries and reports in reference

to the appellant. The respondent was examined at some length ultimately said : - " At the conclusion of yesterday's proceedings, lowing on an analysis of certain discrepancies of evidence, and having regard to other matters put forward by counsel, I left court in grave doubt as to the stableness of the opinion that I firmly held up till then. I went to the chambers of my barrister told him that I had grave doubt upon the matter. Last night until the early hours of this morning I gave very full and careful sideration to the whole of those matters. I carefully studied the of those questions, and reviewed them in the light which they re put to me in this court; the discrepancies which occurred at three places of inquiry during my investigation, and matters ame out at the Royal Commission which caused me to have 'a firm belief. After a very lengthy and careful consideration, formed the conclusion that I am wrong in my opinion in

Bes Having arrived at those conclusions this I visited my counsel and told him what I have told you. that, having come to that conclusion, and after full considera- tion, I should make this statement at the first opportunity."

_ "The commissioner : Thank you very much, Inspector."

nothing on which any charge of dishonesty could be sustained

Counsel soon afterwards withdrew the strong comments that he had made. And the commissioner reported that he had accepte the inspector's explanation that he was mistaken with regard to h findings contained in his original report of 1934: that there

Inspector Fergusson at the former inquiry were both " unwarra and too strong." He added that Inspector Fergusson had act honestly and that his findings were in no way due to carelessness 0 lack of ability. :

At the second trial of the action, the learned trial judge dire that the report of the respondent, which contained the defamat words, was published on a privileged occasion and that the kernel of the case - the issue on which the case had been for was whether the respondent in making his report has been hor or was actuated by malice to the appellant. The jury founda ve for the respondent, which negatives any malice on his part.

It was contended before this court that a third trial should be granted, notwithstanding the judgment of the Supreme Court refusing it, for two reasons : - One, that evidence had been wrongly admitted. 4g

[After dealing with this ground of appeal and concluding that, - for the limited purpose for which it was tendered and in the excep- tional circumstances of the case, the evidence complained of was admissible, and that, in any event, the presiding judge's direction

If the evidence were technically inadmissible, a third trial in circumstances mentioned would indeed be a grave miscarriage 0! justice. a

The other reason advanced for a third trial was that the respondent had published the report containing the words complained of to one Walter Henry Childs on an occasion that was not privileged. The appellant had supplied particulars of the publication of the defama- tory words on which he relied but at the close of the evidence for the defence on the eighth day of the trial his counsel sought to add

to the list of those to whom the defamatory words were publ Against objection, the trial judge allowed the addition to be m but he also ruled that the publication to Childs was also upon privileged occasion. "A privileged occasion is, in reference t

qualified privilege, an occasion where the person who makes a

mmunication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom ; is so made has a corresponding interest or duty to receive it. This rocity is essential" (Adam vy. Ward (1) ). Childs was the joner and Chief of Police in New South Wales in 1933. nt was, as already mentioned, also an officer of police an inspector - and he was subordinate - amongst others - to the issioner. The subject of street betting, the conviction of the lant in 1933 of that offence, and the complaint that he made police officers in connection with the charge and the raid his premises, were all brought to the attention of the commis- ioner. He discussed the matter with the respondent, the investiga- tions that he had made, and dealt with his report of 1934. In 1935, ilds retired from the office of Commissioner of Police and his mtrol of the police force in New South Wales ended. "But he had nowledge of the appointment of the Royal Commissions in 1936 0 inquire into and report upon the conduct of the police in connec- ion with betting offences - indeed, he gave evidence before the er. He also had knowledge of the report of 1936 of commissioner and of his reference in that report to the respondent ; ed, the report had been given the widest publicity in the daily ress and otherwise. And upon seeing the respondent, Childs asked ww his case stood. The result was that the respondent went to uilds' private house and read over to him his report of 1937, con- g the defamatory words complained of in this action. As said, the respondent did not go to him in any official capacity, privately, in a friendly way. It is now said that the respondent not seek Childs' advice as his former chief, but communicated is report to him for the purpose of satisfying Childs' natural and per legitimate curiosity but that Childs had no duty and no to protect, social or moral, in relation to the respondent's rt. The trial judge held, as already mentioned, that the sion was privileged and upon appeal Halse Rogers J. agreed th him but the Chief Justice and Bavin J. were of a contrary

view of this conflict of opinion, the question is obviously one enicety. Upon consideration, I have reached the conclusion t the view taken by the trial judge and by Halse Rogers J. is the one for these reasons. The commissioner's report, and his ts upon the respondent's conduct, as an officer of police, one of interest and concern to Childs. As Commissioner of

he had been responsible for police investigation and action 4 (1) (1917) A.C, at p. 334.

in connection with the appellant's complaint of his treatment by - the police and his knowledge of the facts and his action were influenced, probably greatly influenced, by the respondent's report of 1934. But counsel and the Royal Commissioner had stated their _ opinions of this report and the respondent's conduct in terms already mentioned. Both the respondent and Childs had a common oe interest arising on the report: the respondent that his former chief - should know that he had not neglected his duty and misled him by - false statements, and Childs, though he had retired from the office of Commissioner of Police, that his old and trusted subordinate, the - respondent, had not misled him or influenced his action by neglect _ of duty or false statements. The law does not allow idle curiosity _ in the concerns of others, but the respondent had a duty or interest, - moral and social, to justify himself to his former chief and his former chief had a duty or interest, moral and social, to hear his answer to the comments made upon him or his apologia. " But even if this view be wrong, a third trial of this action should _ nevertheless be refused. The verdict of the jury has negatived any malice on the part of the respondent. Consequently, no reasonable jury would give the appellant more than a nominal sum for damages in respect of the publication of the defamatory words to the former Commissioner of Police who had but a poor opinion of him. Inthe - circumstances stated, no substantial wrong or miscarriage has arisen. The appeal should be dismissed.

Dixon J. This appeal is brought by the plaintiff in an action of libel against a refusal by the Supreme Court of New South Wales to set aside a verdict for the defendant and to order a new trial. The verdict of which the plaintiff complains was returned at the second - trial of the action. At the first trial the plaintiff succeeded in obtain- ing a verdict but the Supreme Court set it aside, entered a verdict for the defendant upon one of the two counts contained in the declaration and upon the other ordered a new trial.

The defendant is an inspector of police and the libel is'a report made by him in his official capacity under a direction proceeding - from the Premier of the State. The plaintiff supplied particulars which stated that the publications relied upon were made to the Premier, the Chief Secretary, the Commissioner of Police, the Metro- politan Superintendent of Police and two sergeants of police. Itis | undeniable that these publications were the subject of privilege, 4 privilege, however, which, according to our decision in Gibbons v. Duffell (1), was not absolute but qualified. At the conclusion of

he evidence the plaintiff sought and obtained leave to rely upon a

publication of the libel. It was a publication to a former

jioner of Police, who, though he had been concerned in his

official capacity with the matters upon which the defendant was

ing, had in the meantime retired from office. The learned

jn whom the second trial took place ruled that this publica-

also was privileged, a ruling the correctness of which the plaintiff contests.

_ No substantial issue remained except whether the privilege had destroyed by express malice and the case went to the jury the issue of malice and upon that alone. In finding for the

a the jury must be taken to have negatived bad faith on

part or any abuse or misuse of the occasion. The plaintiff, how-

ever, says that the verdict cannot stand for two reasons. The first reason given is that evidence was erroneously admitted ; the second,

J the learned judge was wrong in ruling that the publication of libel to the retired Commissioner of Police was privileged.

a two independent matters, and I shall deal with them

: (I) il dealing with the objection to the admission of evidence concluding that, if the evidence complained of was inadmissible, eless, in view of the presiding judge's direction to the jury, it did not appear that the plaintiff had been prejudiced by the admission of the evidence, the judgment proceeded : - ] _ A third trial is not lightly to be ordered. "To induce a court to order a third trial, the party against whom the verdict has passed must establish that the second trial took a course clearly prejudicial him and so erroneous that the verdict cannot justly be allowed 'tostand " (Australasian Brokerage Ltd. v. Australian and New Zealand "Bonbing Corporation Ltd. (1) ). I do not think that the plaintiff

as discharged this burden in respect of the reception of evidence

}) The second ground relied upon by the plaintiff for a new trial that one publication of the libel, that to the former Commissioner 'Police, was not privileged. When the defendant made his inves-

and composed his first report, he was serving under this commissioner, who was the head of the police force. The defendant

c him and, with his sanction, he abstained in the first report

: dealing with a subject to which he gave prominence in his sn report, viz., the membership of the plaintiff, the constable who supported the plaintiff's case aa Inspector Russell of a society

of which the defendant was also a member. The year of the Police - Commissioner's retirement was 1935 and he had given evidence at the first Royal Commission in 1936. He therefore knew a great deal of the matter and might have been called upon to give information upon any question arising out of the defendant's report. The defendant came to his house in consequence of a casua inquiry by him about the progress of the matter and there read to him the report he had just made or was about to make. This the publication which the plaintiff was allowed to add to his ticulars and which he contends was not the subject of privilege.

In my opinion the judge rightly ruled that the occasion was privileged. a

In Baird v. Wallace-James (1) Lord Loreburn says : - ' In consider: ing the question whether the occasion was an occasion of privilege 4 the court will regard the alleged libel, and will examine by whom it - was published, to whom it was published, when, why, and in what circumstances it was published, and will see whether these things establish a relation between the parties which gives a social or moral right or duty ; and the consideration of these things may involve the consideration of questions of public policy." The decision in the present case depends in an especial degree upon a close scrutiny _ of the exact situation of the two persons with reference to the matter in hand and of their relation to one another. The Premier's request - for a report had placed the defendant formally upon his defence. - The attack made upon him by counsel in his absence and the terms - in which the report of the Royal Commissioner referred to him called _ for a vindication of his official conduct and, indeed, of his character. The public nature of the criticisms made upon him must have affected | his reputation.

Any communication which the defendant might make tending to vindicate his conduct or rehabilitate his reputation would be a subject of privilege provided that the person to whom he made the communi- cation were one proper to receive it. It is commonly said that the recipient must possess an interest or be under a duty which corres- ponds with the interest of the person making the communication See, e.g., White v. J. & F. Stone (Lighting and Radio) Ltd. (2), a case with which Somerville v. Hawkins (3) and Taylor v. Hawkins () should be compared. Where the defamatory matter is published in self-defence or in defence or protection of an interest or by way of vindication against an imputation or attack, the conception of a

(1) (1916) 85 L.J. P.C. 193, at p.198; (2) (1939) 2 K.B. 827, at p. 834. (1916) S.C, (H.L.) 158, at pp. (3) (1851) 10 C.B. 583 [138 E.R. 231). 163, 164. (4) (1851) 16 Q.B. 308 [117 E.R. 897}.

g duty or interest in the recipient must be very widely In Adam v. Ward (1) the interest of every citizen in the re of the army seems to have been considered enough by Lord who alone of their Lordships emphasized the necessity ciprocity (2). It is to be noticed that the relevant part of the statement of Parke B. in Toogood v. Spyring (3) speaks of unications " fairly made by a person . . . in the conduct is own affairs, in matters where his interest is concerned " and no community, reciprocity or correspondency either of or duty.

view expressed in the American Restatement is that in such uses it is necessary that the publication be made to a person who, defamatory matter be true, may reasonably be expected to be vice in the protection of the interest. "The fact that decent ordinarily assist others or that the particular recipient has ously given assistance undef similar circumstances is enough

reason to believe that the particular recipient will not give it to on this occasion." "It is not necessary that the recipient y have the power or ability to assist the publisher. It is that he reasonably believes that the recipient is able to assistance or that his knowledge of the defamatory matter be useful in the protection or advancement of the interest in on" (Restatement of the Law of Torts, vol. ut., par. 594 (9),

appears to me that in the present case the former Commis- of Police was a proper person to receive the communication report. He knew all the facts. He had advised the defendant. 'was a person to whom the defendant might look for assistance in his process of vindication. He had been his chief to 'he was responsible at the time when he made his report and, g to ordinary standards, the former commissioner would be ived as having a natural social interest in the rehabilitation is former subordinate, whose actions while under his command rawn down upon him the criticisms which he was endeavouring and which had caused him to be placed officially upon his

The former commissioner was liable to be called upon to or refute the defendant's statements and he also had a real ern in knowing the consequence of his own past adminis-

A.C., at p. 343, (3) (1834) 1 Cr, M. & R., at p. 193 (149 (1917) A.C., at p. 334. E.R., at pp. 1049, 1050}.

Scrutinizing the facts of the case closely in accordance with Lord Loreburn's statement (1), it appears to me that the publication falls. within a well-recognized head of privilege.

For these reasons I think the appeal should be dismissed,

Wiurams J. In November, 1933, the appellant Mowlds was convicted at the Newtown Police Court of starting-price betting « on the evidence of two constables, Nelson and Perrett, who, with a constable named Miller, formed a certain anti-betting squad under Sergeant Gallivan. After his conviction he saw Inspector Russell at the latter's private house and told him that he had been wrongly convicted. Russell advised him to complain to the Police Depart- ment. He informed the department that this evidence was false and had been deliberately fabricated in order to convict him. The - department instructed the respondent Inspector Fergusson to i a into this accusation and report.

On 14th December 1933, conversations took place between Inspector Russell and the respondent and also between the appellant and the respondent.

On 12th January 1934, the respondent reported that in his opinion the appellant had been rightly convicted. é

In 1936 a Royal Commission was appointed to inquire into a number of convictions for betting, including that of the appellant, - and on 30th November 1936 the commissioner, his Honour Judge Markell, made his report in which he found that the appellant had not been betting, that he accepted him as a reliable and truthful witness, and that Sergeant Gallivan and the two constables already mentioned were guilty of having conspired to give false evidence to procure his conviction.

The respondent was absent from Australia when the commission was sitting, but his report was produced and senior counsel assisting the commission publicly charged that it showed the respondent to have been hopelessly incompetent or manifestly dishonest.

In his report of 30th November 1936, the commissioner stated : - "Tt follows from my finding that I disagree with that of Inspector Fergusson. Very strong comments were made by counsel before the commission in connection with the inspector's report. In view of the fact that Inspector Fergusson was away from Australia and had no opportunity of being heard before the commission, I prefer to say nothing beyond the fact that I am totally unable to under- stand either the conclusions at which he arrived or the reasons which he put forward for arriving at them."

(1) (1916) 85 L.J-P.C., at p. 198; (1916) S.C. (H.L.), at pp. 163, 164.

As a result of this report, the Premier, on 26th December 1936, sent a memorandum to the Commissioner of Police in the following

"Will you please obtain from Inspector Fergusson a port both with respect to the course taken in his investigation the terms of his report re the Mowlds case in the light of the ers mentioned in the finding of Judge Markell and of the relevant gations in counsel's address referred to by the judge in his " The commissioner gave instructions that Inspector Fergusson should furnish the necessary report as soon as possible, adding that "every salient feature of the matter should be thoroughly and eorrectly traversed." The respondent thereupon prepared, and on th January 1937 submitted, the report which had been called for. this second report the respondent only purported to carry out \is instructions to explain how he had arrived at the conclusions in first report. He stated in substance that he had been strongly influenced to accept the evidence of Nelson and Perrett and to dis- eve the appellant and Miller because of his belief that they were ittempting to put Masonry to an improper use. d ~ A second Royal Commission was then held in 1937. 'The respon- gave evidence in the course of which he admitted that on

then withdrew his previous charge of dishonesty and on 15th ber 1937 the commissioner made his second report in which e stated : - "T accept the inspector's explanation that he was mistaken with regard to his findings contained in his original report

the 12th January 1934. There is nothing on which any charge dishonesty could be sustained against him. In this connection it is only fair to state that Mr. Windeyer in his address said t certain remarks made by him with regard to Inspector Fergusson at the former inquiry were both ' unwarranted and too strong.' I quite prepared to report that Inspector Fergusson acted honestly, d that his findings and the mistake he made were in no way due to carelessness or lack of ability. No blame should be attached to

nspector Fergusson in this respect (the methods used by him in g his investigation) because he merely followed the practice ; rily observed in investigations of this nature."

'Shortly after this, on 29th November 1937, the appellant com- ced an action against the respondent in the Supreme Court for el, complaining that each of the two reports which the respondent had made to his superior officers contained statements defamatory

er consideration he was satisfied the conclusions he had reached -

admittedly made on an occasion of qualified privilege and it

At the first trial, the jury found a verdict for the appellant on the first count for £200 and on the second count for £500. Upon motion to the Supreme Court, it was held that no evidence had given of any malice on the part of the respondent in relation to the libel alleged in the first count ; and, for reasons which will be found in the report of the motion, a new trial was directed limited to the second count.

On the second trial the jury returned a verdict for the defend The Supreme Court on appeal refused to direct a new trial, and the plaintiff has appealed to this court. ;

Two grounds were argued by counsel for the appellant in sup of an application for a new trial. The first and main ground that the trial judge had wrongly admitted in evidence the secon report of the commissioner, which had acquitted the respondent improper motives in making his reports, and had thereby discl to the jury that the commissioner was satisfied that the respond in making these reports had acted honestly though mistakenly The appellant was complaining of the publication of the report b the respondent to his superior officers so that the publication

necessary for the appellant to establish express malice on the part of the respondent. It was submitted that this opinion of the commis- sioner must have strongly influenced the minds of the jury on the - very question it had to determine. si

[After dealing with this ground of appeal and concluding that the evidence complained of was admissible subject to an appropriate direction to the jury by the presiding judge and that such a direction had been given, the judgment proceeded : - ] ad

To induce a court to order a third trial the party against whom : a verdict has passed must establish that the second trial took a course clearly prejudicial to him and so erroneous that the verdict - cannot justly be allowed to stand: See Australasian Brokerage Ltd. v. Australian and New Zealand Banking Corporation Ltd. (1). No such prejudice occurred in the present case. On the contrary the trial was so conducted that the case for both sides was fairly placed before the jury. The first ground of appeal therefore fails.

The second ground of appeal argued by the appellant related to the publication of the respondent's second report to the witness W. H. Childs. Childs was the Commissioner of Police at the time the respondent made his first report but he had retired at the time

publication. The publication took place before any decision been made to hold a second Royal Commission. Childs had the respondent how the case stood and the latter went to the 's home and read the second report to him. The only personal which Childs had in the matter was that the respondent had under him and that he believed the respondent had been promotion because of what had happened, but he held no position and the report was read to him simply as a friend. learned judge held, in my opinion rightly, that the publication been made on an occasion of qualified privilege. The respondent a senior officer in an important public body, namely the police. been publicly charged with dishonesty or gross incompetence or counsel at the hearing of the first commission, and the ioner, in his first report, while leaving open the question of nt's honesty, had stated that he was totally unable tand the conclusions at which the respondent had or the reasons which he put forward for doing so. An on is privileged where the person who makes a communication n interest or a duty, legal, social or moral to make it to the on to whom it is made and the latter has a corresponding interest ity to receive it (Watt v. Longsdon (1); White v. J. & F. Stone ing and Radio) Ltd. (2) ). The occasions on which a person n have an interest or duty of this nature to make a communication another person a corresponding interest or duty to receive it vary according to the facts of each particular case. If the tation of a person holding a public position is publicly attacked an interest to reply to such attack and publish it to the ers of the public who are likely to have become aware of it, ind such members of the public would have an interest to receive

See Coward v. Wellington (3) ; Hemmings v. Gasson (4) ; Chapman ere (Lord) (5); Halsbury's Laws of England, 2nd ed., vol. p. 478; Gatley on Libel and Slander, 3rd ed. (1938), pp. 290-300 ; day v. Sun Newspapers Ltd. (6). Adam vy. Ward (7) Lord Dunedin said : - * The criterion as to er the occasion is privileged or not is most tersely stated in ll-known passages of Parke B.'s judgment in Toogood v. q (8): 'fairly made by a person in the discharge of some ie K.B. 130, (5) (1932) 2 K.B. 431, at pp. 456,

2 K.B. 827. 466-468, 7 Car. & P. 691 [173 E.R. (6) (1938) 59 CLR. 503, at pp. 519, 5:

EB. & E, 346 (120 E.R. (7) (1917) A.C, at p. 3: (8) (1834) 1 Cr. M. & R., at p. 193 [149 E.R., at pp. 1049, 1050).

public or private duty, whether legal or moral, or in the cond his own affairs, in matters where his interest is concerned,' and a "Tf fairly warranted by any reasonable occasion or exigency, honestly made, such communications are protected for the convenience and welfare of society ; and the law has not resi the right to make them within any narrow limits.'"

I think that the great mass of Australians of ordinary intelli and moral principle would have recognized the right of the respon to make such a reply. It was warranted by an occasion or e: in the conduct of his own affairs in a matter where his interests concerned to do so. Childs was a member of the public who kne that the respondent's reputation had been publicly attacked and such had an interest to read his reply contained in his second repor

I also consider that the occasion was privileged for the n stated by my brother Starke in his judgment which I have read.

Appeal dismissed with costs, Solicitors for the appellant, Fawl, Ferguson & Hudson Smith.

Solicitor for the respondent, J. EZ. Clark, Crown Solicitor for South Wales.

At a glance

Court

Decision date

Before

Source

Judgment (98 paragraphs)