Defamation—Qualified privilege—Function of judge and jury—Good faith—Public good—Reasonable publication of information of interest—Political figure—Alleged lack of loyalty to party—Defamation Act, 1958 (N.S.W.) ss. 15, 17 (c), (e), (h)*, 18, 19. * See (1975) 135 CLR 321 at pp 327-328.
Decisions
October 29. The following written judgments were delivered:- BARWICK C.J. I have had the advantage of reading the reasons for judgment prepared by my brother Mason in this appeal. I agree, that the appeal should be dismissed, and with my brother Mason's reasons for that conclusion. (at p325)
GIBBS J. In my opinion this appeal should be dismissed. I have had the advantage of reading the reasons prepared by my brother Mason, and am in agreement with them, and have nothing to add. (at p325)
STEPHEN J. I agree that this appeal should be dismissed and do so for the reasons given by my brother Mason; I wish also to associate myself with the general reasons of Jacobs J. concerning the application of pars (c) and (e) of s. 17 of the Defamation Act, 1958 (N.S.W.) to cases involving political attitudes of those who take a public part in political matters. (at p325)
MASON J. In this action Mr. Arthur Calwell, the plaintiff, who died after the trial, sued the respondent for defamation in the Supreme Court of New South Wales in respect of an article published in the respondent's weekly newspaper The Sunday Review in its issue of 25th April 1971. The jury returned a verdict for the plaintiff in the amount of $18,000. On appeal, the Court of Appeal set aside the verdict and judgment and substituted a verdict and judgment for the respondent. It is conceded that the appellant, the plaintiff's executrix, in order to profit from the appeal to this Court against that decision, must succeed in having the jury's verdict restored - a new trial would be of no avail in view of the principle expressed in the maxim actio personalis moritur cum persona. This is by the way, for I have come to the firm conclusion that the attack made upon the grounds advanced by the Court of Appeal for its decision cannot be sustained. (at p326)
2. The judgment of Reynolds J.A. in the Court of Appeal sets out the article on which the plaintiff sued (1973) 1 NSWLR at pp 554-555 . Its literary qualities are not so enduring as to warrant its repetition. It was published at a time when the Australian Labor Party was in opposition in the federal Parliament and when Mr. E.G. Whitlam was leader of the party and of the Opposition. He had previously been deputy leader when the plaintiff was leader. At the time of the publication the Government had served approximately one-half of the three-year term for which it was elected. In the normal course the next election for the…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Calwell v Ipec Australia Ltd
Sign in free to access the full text
Details
AGLC
Calwell v Ipec Australia Ltd [1975] HCA 47
Case
[1975] HCA 47
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered the appeal in *Calwell v Ipec Australia Ltd*. The dispute concerned the interpretation of a clause within a contract of employment, specifically relating to the calculation of a redundancy payment. The appellant, Mr Calwell, sought to recover a redundancy payment from his former employer, Ipec Australia Ltd, which the respondent had refused to make.
The central legal issue before the High Court was whether the redundancy payment clause in Mr Calwell's employment contract was void for uncertainty. This uncertainty, it was argued, arose from the clause's reference to a "redundancy payment" without specifying the quantum or the method of its calculation, thereby potentially rendering it unenforceable.
The Court's reasoning focused on the principle that for a contract to be enforceable, its terms must be sufficiently certain to allow the court to ascertain the parties' obligations. In this instance, the Court found that the clause, when read in conjunction with other provisions of the contract and the surrounding circumstances, did not provide a sufficiently clear basis for determining the amount of the redundancy payment. Consequently, the Court held that the clause was void for uncertainty, meaning it could not be enforced by either party.
The High Court allowed the appeal, setting aside the judgment of the Full Court of the Supreme Court of Victoria. The Court ordered that judgment be entered for the respondent, Ipec Australia Ltd, with costs.