trial, in an action for slander, upon the ground that there v evidence that Dunn

trial, in an action for slander, upon the ground that there v evidence that Dunn - [1911] HCA 12 - HCA 1911 case summary — Zoe

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Stewart & Co. The only question for determination is wl the appellants are responsible for Dunn's slanderous statem The learned Judges of the Supreme Court apparently thou; that the case fell within the rule laid down in Citizens' L Assurance Co. v. Brown (1), in which Lord Lindley, deliver the opinion of the Judicial Committee (in 1904), quoted approval the words of Acting Chief Justice Stephen: " Althor the particular act which gives the cause of action may not authorized, still if the act is done in the course of employn which is authorized, then the master is liable for the act of servant." The phrase "in the course of employment" is not from ambiguity, as has become only too manifest since 1904, the sense in which the learned Lord used it was made clear by ot parts of the opinion. He had just before said (2) : - " It is clear the scope of Fitzpatrick's authority and employment was wi and by no means clearly defined. In considering the scope of hi authority and employment their Lordships agree with the Ac Chief Justice in thinking that the jury were entitled to act their own knowledge of Colonial business and habits." TI quoting the words which I have read, and referring to some he added : - " Such being the evidence, their Lordships cann judicially hold that there was no evidence to warrant the jury finding that it was within the scope of Fitzpatrick's authorit and employment to write," &. The real question, then, whether the act complained of was within the scope of authority and employment of the alleged servant or ag The reasons and the limits of the rule are, if I may respect! say so, well expressed by Willes J. in the case of Bayle; ; Manchester, Sheffield, and Lincolnshire Railway Co. (3), qu by Rigby LJ. in Dyer v. Munday (4): - " A person who another in his place to do a class of acts in his absence nece: leaves him to determine, acdording to the circumstances arise, when an act of that class is to be done, and trusts him the manner in which it is done; and consequently he is answerable for the wrong of the person so entrusted either in manner of doing such an act, or in doing such an act unt

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in which it ought not to have been done; provided what was done was done, not from any caprice of the but in the course of the employment." Rigby LJ. : - "The class of acts to be done by the manager the resumption of furniture . . . and it was left to him to ermine when such an act should be done and the manner in it should be done." is apparent, therefore, that the first step in the present case to show what was the scope of the authority and employ- nt of Dunn; and the burden of proof was on the plaintiff. nn was not called as a witness. It was proved that he had n employed by the defendants as a canvasser for advertise- nts under a written engagement from 26th November 1909 to January 1910, when the engagement was terminated on the und of the defendants' dissatisfaction with his efforts. The words complained of were uttered about the end of puary or beginning of February in the course of interviews tween Junn and two persons named Mulholland and Boylson, connection with requests to supply him with copies of adver- tising contracts said to have been made by plaintiff with them respectively. The only direct evidence as to the nature of Dunn's employ- ent. by defendants at that time was given by defendants' manager Shakespeare in the course of the defendants' case. He josed that, on a day between 6th January and 14th February, ann called upon him and told him that another advertising firm re offering advantages to advertisers in a supplement supplied many as 40 country newspapers, to which Shakespeare ied that it was highly improbable that any firm in Sydney could do so, and that it would be interesting to see the contract, that Dunn then said " Well, when I am canvassing Sussex 'St eet, I will try and get you one." If there were no more in e case the plaintiff would plainly have failed to show that the defendants were liable for Dunn's statements. _ He had, however, in his own case endeavoured to show the scope of Dunn's authority and employment. Evidence was given hat on two occasions, one at the end of February and the other

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n being taken down. A lot passed between us, but I can't collect anything at the moment. He apologized for the trouble fr. Dunn had put me to, and then he left." 'The words relied on as an admission are " He said that Dunn was evidently over enthusiastic and had bungled the matter." I annot find in these words anything to show that the scope of ann's authority and employment was such as to empower him 0 say anything he thought fit in disparagement of plaintiff, wi le endeavouring to obtain a copy of plaintiff's contract with holland. The utmost that can be inferred from them is. that shakespeare had authorized him to ask for a copy of the contract. Another witness, Caldicott, deposed that at Shakespeare's re- est he had an interview with him towards the end of February, _ when Shakespeare asked him about a conversation which he had d with Dunn, and that he told him substantially what Dunn d said, which he narrated as follows :- - _ Dunn said " We claim that McCarron, Stewart & Co. cannot insert Smith's advertisement in all those papers named on the back of their 'contract' The copy of the contract which he produced to me had certain of the papers marked with a red dot, nd he said ' we claim that they cannot insert that advertisement in those papers marked with the red dot.' On the list I saw that ie Walcha Witness was marked. I immediately picked up the alcha Witness with Smith & Co.'s advertisement in it and I said 'how do you account for this; here is the Walcha. Witness with the advertisement in it' He said 'well of course this list was marked from' memory; it has not been checked.' I said 'that's a very peculiar thing for you to do; you are doing a very serious thing in going about making a statement like that; you ought to verify your references and get your facts in order before : you do a thing like this' He said 'well, of course I am only 4 doing what Mr. Shakespeare told me to do.' "Tcannot say whether I told Mr. Shakespeare that, but I believe _ that I told Shakespeare all that occurred in the office. : "T am not at all clear as to what I told Shakespeare. He asked me what had occurred in my office, and so far as I know I told him everything that occurred in the office. That is all I remember telling him. Vor. xn, 4

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" Shakespeare then told me that Dunn had not had the autho 4 of the Country Press Co. to make the statements he had made "I was rather angry because Dunn had gone to my client, Mi Smith, without comiag to me. Mr. Shakespeare knew Smith was my client, and I spoke to him about that. I rememb Shakespeare saying that Dunn was perhaps over enthusi and that he had done more than he had been told to do, or more than he had any authority to say. "Q. Did he say anything about where Dunn was over enth astic. A. Yes, in Sussex Street. He told me he had sent Dun down to Sussex Street as the representative of some of thi papers to make certain statements. He said that certain of th papers on this list were their papers and the proprietors of them were members of the Country Press Company, and he told m he had sent him down there as representing those papers. Country Press Company is the defendant company." Upon this evidence the learned Chief Justice remarks (1): the jury believed that Dunn was sent down to interview pers and protect the interests of newspaper proprietors who wi shareholders in the company, the conclusion would be corr: enough that the man was doing the company's work, assumin; that Shakespeare had authority from the company to so emp! him. I only read that witness's evidence, but putting it side b side with that of other witnesses, it seems to me that there evidence from which the jury could find that Shakespeare s Dunn down to interview these people in Sussex Street on business of the company." I agree that in the case put the conclusion that Dunn doing the company's work would in one sense be correct. I agree that it might be inferred that he was sent to intervi people on the business of the company, using that expression the sense of "some business of the company " as distingui from the "business of the company in general," that b being to make certain statements, of which we know nothii But I fail to find in the evidence anything to show that he more than a special and limited authority, or to adopt the word: Willes J. and Rigby L.J., anything to show that he had autho (1) 10S.R. (N.S.W.), 747, at p. 755.

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of contract used by the respondent) " were their papers, and proprietors of them were members of the Country Press Co.' that he had sent Dunn down there as representing "certs papers whose proprietors were the members of the Co Press Co." is While the jury might well conclude from this evidence that Shakespeare's admission Dunn had been sent by him ton certain statements, yet it also appears that.his authority limited to the duty of making the statements, the natur which is not shown by the respondent. The remaining conversation, that with Mulholland, took I early in May, after action brought, when Shakespeare was ac panied by his company's solicitor. In response to inquivie Shakespeare, Mulholland related a slander upon the respond firm, uttered by Dunn to him, and which has already detailed. He also stated that Dunn, before uttering the sla had asked him (Mulholland) to show him an advertising con that he had with the respondent. On this narrative Shake: said that "Mr. Dunn was evidently over enthusiastic and bungled the matter"; that they, the company, "were the protect the interests of honest traders, that they did the whol the country advertising, that they were there to save traders from being taken down." Before leaving, Shake apologized for the trouble to which Dunn had put the witne Here again is evidence of some authority given to Dunn. | precise nature is left to inference, and it may be inferred | Dunn had acted within it in asking Mulholland to show hii witness's contract with the respondent. It cannot howeve inferred,sany more than in the case of Caldicott, that he ha authority to "do a class of acts" in the doing of which he necessarily "left to determine, according to the circumsta that arise, when an act of that class is to be done" (See Willes J. in Bayley v. Manchester, Sheffield, and Lincolnsi Railway Co. (1). There is no evidence that Dunn was sent Caldicott with any authority to do more than to make ¢ statements, of which the respondent does not prove the natur or that he was sent to Mulholland to do more than endeavour

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cure a sight - or perhaps a copy - of an advertising contract. n these circumstances, can the slanders be deemed to be within scope of the authority given to Dunn in either instance ? it be said that the slanders were "in the course of carrying ut his employment," as Lord Esher puts it ? "Among the many decisions on the question of the responsibility of principals, since Barwick's and Bayley's Cases, the case of jucus v. Mason (1) may usefully be referred to. The reasoning rds, I think, a discrimen for the present question. The plain- "was present in the gallery of a hall where there was a meeting ivened by members of an association. The defendant acted as irman. Some disturbance occurred in the gallery near the intiff, but he did not join in it. The defendant said : - * I shall obliged to bring those men to the front who are making the arbance. Bring those men to the front." Thereupon a man a white ribbon on his arm (apparently a steward authorized ssist in keeping order) together with two policemen, seized plaintiff and dragged him to the front, and he was injured. e was no evidence that the defendant had given any instruc- as to keeping order to the plaintiff's assailants before the It. The plaintiff was nonsuited, and the Court of Exchequer camwell, Cleasby and Pollock BB.) refused to set the nonsuit They held that the evidence did not show that the defend- s order meant " Determine who are the disturbers, and when ave done so, bring forward those whom you so determine to he disturbers." 'The evidence did not appear to them to show authority to bring forward any persons other than the actual urbers. After stating the law in terms equivalent to those used Willes J. in Bayley's and Barwick's Cuses, they said (2) : - 'is rule holds especially where the master is absent, and the to be performed vicariously is general in character, as in the £ conductors of public vehicles, railway servants, and the "Jn the present case there was no relation of aster and servant, or of principal and general agent, or agent such cases as might occur in the absence of the principal, but particular direction as to a particular matter, and this, in our idgment, not only prevents the decisions referred to binding (1) LB, 10 Ex., 251. * (2) LR. 10 Ex., 251, at p. 253.

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may not be authorized, still if the act is done in the course employment which is authorized, then the master is liable for act of his servant." To ascertain whether a thing is done or said "in the course an employment which is authorized" must depend primar upon the scope of the employment, in other words, upon what principal has employed the agent to do. Having ascertained what the agent is employed to do, it may be taken that he | authority to do and say everything which may reasonably deemed necessary for effectively carrying out the duty on wh he is employed. Moreover within these limits it will generall be taken that he has been allowed by his principal a diser as to the manner in which he will discharge his duties. ' In Barwick v. English Joint Stock Bank (1), cited by 3 Justice Lindley in the judgment to which I have referred, _ Justice Willes illustrates that position. After giving instances cases in which principals have been held liable for wrongs coi mitted by agents in the course of their employment he sa; "Tn all these cases it may be said, as it was said here, that master has not authorized the act. It is true, he has r authorized the particular act, but he has put the agent in place to do that class of acts, and he must be answerable for { manner in which the agent has conducted himself in doing business which it was the act of the master to place him in." _ The determination of what the principal has appointed tl agent to do, in other words, the scope of the agent's authori rests in most cases upon inferences to be drawn from the relev circumstances, and the jury in drawing inferences are entitled act on their knowledge of business and of business methods. this connection I may refer to the distinction between the prool required in determining what is the scope of a general agen authority, and that required in determining what is the author' of aspecial agent. The distinction is founded in the differ state of facts from which in each case the inference of authori (1) LR. 2 Bx., 259, at p, 266.

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documents appear reasonable, such an authority could not reasonably be interpreted as authorizing him to make statements as to the respondent's power to enter into certain advertising contracts, or his power or intention to fulfil them when made. 'The argument however most relied on by respondent's counsel was that Dunn was employed as a canvasser for advertisements to obtain the documents, and that it was within the scope of such employment to make the statements complained of. It may be, no doubt, that criticism of competing advertiser's business methods is an ordinary part of a canvasser's business, and that if Dunn had been employed to get the document in the course of a canvass, authority to make statements about the respondent's business methods might fairly be inferred, and if at the time he was sent on this duty Dunn was in the company's employ as a canvasser, there might be something in the contention that he was sent in that capacity. But that was not thecase. His services had been dispensed with by the company some time before, and the only evidence of his having acted subsequently as a canvasser for the company was their acceptance of two advertisement contracts, which he obtained after the speaking of the defamatory words. The uncontradicted evidence as to the course of advertising business was that advertising agents do offer and accept adver- tisements brought to them by independent canvassers, paying commission to the canvasser when the advertisement is accepted, but that the advertising agent may please himself as to accept- ing or declining the advertisement when it is brought to him under these circumstances. It would be indeed a serious liability immeasurable in extent if the acceptance by an advertising agent of advertisements, brought to him under such circumstances, were taken to import an authorization of every statement the can- vasser might have made in the course of his canvass as to the merits of rival advertising agents. For these reasons it seems to me that the fact that Shakespeare chose as his agent in the dis- charge of the special duty of obtaining the document in question an independent. canvasser from whom the company sometimes accepted advertisements is a circumstance from which no infer- ence can be drawn in support of the authority in Dunn which the respondent alleged, and of which he was bound to give

At a glance

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Decision date

Before

Source

Judgment (122 paragraphs)

Parties