Peyton v CAL

Peyton v CAL - [1945] HCA 51 - HCA 1945 case summary — Zoe

[112]

Shand K.C. (with him Ashburner and Carson), for the appellant. The plea of qualified privilege should not have been struck out. The following propositions are put to the Court : - 1. It is the occasion which is privileged. 2. It is the attack which gives rise to the occasion. 3. Once the occasion for privilege has arisen, it can only be displaced by proof of actual malice in some form, extrinsic or inttinsic. 4. The existence or non-existence of actual malice is a question for the jury. 5. An invitation to sue is no evidence of actual malice (and if it were that would be a matter for the jury). 6. The effect of the invitation was to emphasize the strength and truth of the defendant's counter-attack. In other words, the defen- dant in effect said that the plaintiff was such a liar and had made such extravagant and unwarranted attacks that no court could give him a verdict, either because he would be proved to be a liar or because his attacks were so virulent that nothing that the defendant might say in answer could be taken as evidence of malice. [He referred to Adam v. Ward (1), per Lord Finlay (2), per Lord Loreburn (3), per Lord Dunedin (4), per Lord Atkinson (5), per Lord Shaw (6).] There was an attack on the defendant either directly personally or indirectly personally. A servant is entitled to reply on behalf of those who employ him (Loveday v. Sun Newspapers Ltd. (7)). As to the attacks on the press in general, a person or company is entitled to defend its proprietary rights (Norton v. Hoare (No. 1] (8)). The jury was entitled to conclude that these attacks were attempts to destroy the right of newspapers to freely publish - to bring about the abolition of a number of newspapers. There is only one privilege in issue here, that of the defendant, though he derives it in different ways. The fact that a different question of malice may arise in each case does not matter, because privilege is a matter for the judge and not for the jury. The plaintiff is not prejudiced by one plea regarding privilege derived from four different heads. Malice has to be pleaded and the pleadings have not reached that stage yet. In considering the defence of qualified privilege, the whole series of attacks, and not the last attack only, should be taken into account ; also, it cannot be known until all the evidence is given at the trial what the nature of the attack is.

[115]

The purpose of the particulars is to show what is relied on and there can be nothing in the nature of a demurrer to them. Particulars should not be struck out unless they obviously cannot support a plea. The test is an objective one: the question is whether a privileged occasion has arisen and whether the defendant's reply is germane to that (Gatley on Libel and Slander, 3rd ed. (1938), p. 269). If an oéeasion is privileged, there must be malice to take a state- ment out of the privilege: an invitation to sue does not debar a defendant from pleading privilege. Dixon J. said that, by pleading privilege, the issue might be intercepted, but the issue in this ase is not intercepted, because the defendant has taken it upon himself to prove that the plaintiff was a liar and the plea of privilege does not mean that he is not going to fight the case on that issue. The plea of privilege may assist greatly in proving justification ; the onus lies on the plaintiff to prove malice and this may force him into the box where he may be proved to be a liar. The invitation to sue is an invitation to fight the matter out in the court taking the law as it stands, including the right of the defendant to plead qualified privilege. The plaintiff's attacks disclosed an intention so to under- mine the existing press system that it would cease to exist, and a corporation which a person is seeking to destroy can for its self- preservation attack the accuser. This is different from the question _ whether a member of a class has a right to sue for libel. The article complained of is a general attack on the plaintiff's veracity rebutting each and every statement he has made against the defendant and each and every interest which the defendant is entitled to protect. [He referred to Gatley, 3rd ed. (1938), pp. 296, 297; O'Donoghue v. Hussey (1) ; Adam v. Ward (2).] In view of the very strong words of the attacks made by the plaintiff, it would be impossible to prove malice. It is a matter for evidence to link up all the matters set out in the particulars (Godman v. Times Publishing Co. (3), per Bankes L.J.). As to the plea of justification, all statements of opinion may amount to fraudulent misrepresentation and must be able to support a statement of deliberate lying.

[125]

ed. (1938), p. 291; Blackham v. Pugh (1) ). Proof of express malice will therefore defeat privilege (Gatley, 3rd ed. (1938), p. 291; Macin- tosh v. Dun (2)). The protection afforded to defamatory state- ments made in self-defence is founded not on the private interest of the individual but on the convenience and welfare of society generally (Holmes, Common Law, pp. 138, 139; Gatley, 3rd ed. (1938), p. 215; Macintosh v. Dun (3)). The right of self-defence is a right which the law permits to repel a charge or defamatory accusation operating to the defendant's detriment (Gatley, 3rd ed. (1938), pp. 290, 291, 297, 299; Brewer v. Chase (4) ). So long as the defendant might honestly or on reasonable grounds believe that certain words used by him were true and were necessary for the vindication of his protection, they will be protected, even if untrue, if they are used as part of his defence to the accusation (Adam y. Ward (5) ). For example, (a) words may go beyond what is reason- ably necessary for self-defence, but they must still be for the purpose of self-defence ; (b) the words may assert that the plaintiff is known to be in the habit of making mis-statements (O'Donoghue v. Hussey (6); Gatley, 3rd ed. (1938), p. 297). The essential ingredient of the foregoing is that the occasion is used, more widely perhaps than is necessary, for an answer, denial or explanation of a charge made by the plaintiff, even though it includes as part thereof an allegation of the plaintiff's mendacity. That ingredient is lacking if the occasion (as here) is used for another purpose, such as bringing a fresh accusation or making a countercharge not connected with the allegation to be repelled (Gatley, 3rd ed. (1938), p. 299). The plea of privilege is to the whole of the words complained of. If an exam- ination of the words shows that any words were published for a reason other than self-defence, the whole plea fails. The language used requires a judge to direct that the words most defamatory of the plaintiff were published not in the exercise of a right of self- defence, but for the purpose of attacking the plaintiff so as to drive the plaintiff to proceed by action, so that the defendant could prove his allegations in a court of law. The article must be construed as a whole to see what was the purpose of the defendant: to exercise a right of self-defence or to do something more. When construed, it shows that the words were not published by way of self-defence but by way of provocation to a course of action, i.e., litigation. The heading of the article, " Calwell can sue on this," states the

[154]

ae But there is a particular feature of this case which led the learned tatam C3. judge to strike out the plea of privilege altogether. The plea was struck out upon the ground that the article contained a challenge by the defendant to the plaintiff to abandon his parliamentary privilege and to sue upon the defamation contained in the article. His Honour was of opinion that, by this challenge to sue, the defen- dant invited the plaintiff to try in the courts an issue which the defen- dant had raised in the public controversy and again specifically in the article namely, that the plaintiff was an habitual liar. His Honour was of opinion that, while such an invitation left it open to the defendant to plead justification, it precluded him from pleading qualified privilege because, as his Honour put it, it " intercepted the issue " by raising in addition to the issue of whether the plaintiff was a liar the further issue of whether the defendant was protected, by reason of the occasion being privileged, in stating that he was a liar even if that statement was untrue in fact. As his Honour said, . there is no authority upon this point, but the decision was based : upon the view which the learned judge took of the rationale of the defence of qualified privilege, at least in the case of self-defence. We understand his Honour to have held, in effect, that if, in reply to an attack by a plaintiff, a defendant has made a defamatory counter-attack and has invited the plaintiff to sue upon the counter- attack, the only defence which the defendant can rely upon is the defence of truth, for the reason that the defendant has asked the plaintiff to try that issue (and that issue only) in the courts and the plaintiff has complied with his request, and should not therefore be subject to being met with a defence of privilege which might enable the defendant to succeed even though he failed to prove that the libel was true. With much respect, we find ourselves unable to agree with the decision of the learned judge upon this matter. The passages in the article which contain the challenge to sue are not included in the libel as pleaded by the plaintiff. They do not appear in the pleadings at all. The defendant in his defence admits that he published the words complained of in "an article ' - but, though such a reference to a document in a pleading entitles the other party to have it put in evidence by the plaintiff at the trial and to obtain inspection of the document (High Court Rules, Order XXIX., rule 12), it does not incorporate the document in the pleading,

[160]

H.C. or A. number of newspapers of which the Daily Telegraph is one. The reat: statements attributed to the plaintiff are capable of bearing this Perox Construction and a jury could, after hearing evidence (and particulars oe should not be expected to set out and should not set out the evidence ees by which a party hopes to prove his case), find that they did bear it. tatham CJ. Tt has already been said that the proprietor of a newspaper and his employee (see authorities already cited) can rely upon privilege when either replies to an attack upon his character or his proprietary interests (Norton v. Hoare [No. 1] (1)). But the defence does not allege an attack upon such character or interests. It states that the plaintiff made attacks "upon newspapers published and circu- lated in the Commonwealth of Australia particularly in respect of their right to publish in accordance with the law matters of public interest." The metropolitan daily newspapers are a small class of which the Daily Telegraph is one. The attacks upon the daily news- papers alleged subversive, unpatriotic and selfish behaviour of a serious nature, and could -be construed as amounting to attacks upon both the character of the proprietor of and its proprietary interests in the Daily Telegraph. But the third paragraph of the defence contains no reference to such matters - it suggests a defence of fair comment, but does not plead such a defence. The defence of qualified privilege should be amended. It was also argued that the article was not written and published by the defendant in defending himself but "' by the newspaper" (i.e., the company) in defending itself against the plaintiff's attacks. Thus, it was argued, the attacks upon the plaintiff personally were irrelevant for all purposes and all allegations with respect to them should be struck out. Whether the defendant was defending himself against attacks on himself as well as on the newspaper, its proprietor and managing director, is a matter for the determination of the jury after hearing all the evidence. The article, especially with the references which it makes to other occasions of controversy, is capable of such a construction. It would, in our opinion, be wrong for a court to hold as a matter of law that an editor sued for libel who had been violently attacked both personally and in relation to his editorial work, and who wrote an article in reply using " the editorial we," must be taken to be dealing only with matters impersonal to himself. Such a question should be decided on a summons to strike out a pleading only in a case where it is perfectly plain that the libel could not possibly be regarded as a reply by a defendant for himself or for his employer to attacks made upon either or both of them.

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Judgment (227 paragraphs)

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