Dun v Macintosh - [1906] HCA 24

DUN AND OTHERS

DEFENDANTS,

MACINTOSH AND ANOTHER

RESPONDENTS PLAINTIFFS,

MACINTOSH AND ANOTHER

DUN AND OTHERS

RESPONDENTS. DEFENDANTS, Defamation-Privileged occasion-Trade protection agency-Report as to credit of

business firm - -Communication to subscribers-Malice-Subsequen report by defendants - Admissibility of evidence - Onus of proof-New trial - Cross SYDNEY,

appeals - Practice. April 26, 27,

A trade protection society, in the ordinary course of its business, pub. May 1, 2.

lished to one of its subscribers, a firm of hardware merchants in Sydney, in response to a specific and confidential inquiry, a confidential report con- taining damaging statements as to the commercial standing and financial position of another firm of hardware merchants carrying on business in Sydney.

In an action for libel brought by the latter firm against the society: Held, that the occasion was privileged, and that the question whether the defendants were or were not acting from a sense of duty in publishing the libel, though important on the question of malice, was not relevant to the question of privileged occasion.

3 CLR 1135

At the trial the jury found specially that in publishing the report, which consisted for the most part of matters of rumour and repute, the defendants acted from a sense of duty to their subscribers and not from an indirect or improper motive, and exercised care as far as possible to ascertain whether the statements in the report were true or false.

Held, that this finding negatived malice and that the defendants were entitled to judgment,

Held, also, that the defendants were entitled to give evidence that the rumours referred to in the alleged libel existed in fact, but that the onus was on the plaintiffs to prove that the rumours did not exist, or that, if they did exist, they were untrue to the knowledge of the defendants

That the jury were entitled to take into consideration, in favour of the defendants on the question of malice, the existence of rumours defamatory of the plaintiffs, the nature of the rumours, and the persons by whom they were

That the Judge rightly refused to direct the jury that the onus rested on the defendants to prove that these rumours had not originated in the defamatory report that they had published.

A document in the possession of the defendants was tendered by the plaintiffs as evidence of malice in that it tended to show that at the time when the defendants published the alleged libel they knew the statements contained in it to be untrue. The document was rejected.

Held, that, as the document was not evidence of malice in the way con- tended for at the trial, it was rightly rejected, and the plaintiffs were not entitled, on à motion for a new trial on the ground of the wrongful rejection of evidence, to contend that the document was admissible on the question of malice on a ground that had not been taken at the trial.

Per Griffith C.J.-In an appeal from a decision…

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 Dun v Macintosh

Details

AGLC: Dun v Macintosh [1906] HCA 24
Case: [1906] HCA 24
Decision Date: 2 May 1906

CaseChat Overview and Summary

The case of *Dun v Macintosh* concerned a defamation action brought by the plaintiff, Dun, against the defendants, Macintosh and others, who operated a trade protection agency. The dispute arose from a report published by the defendants concerning the creditworthiness of the plaintiff's business. The plaintiff alleged that the report was defamatory and that the defendants had acted with malice in publishing it. The matter came before the High Court of Australia on cross-appeals following a trial.

The central legal issues before the High Court were whether the occasion of the publication of the report was privileged, and if so, whether the plaintiff had discharged the onus of proving malice on the part of the defendants. The court also considered the admissibility of evidence relating to a subsequent report published by the defendants, and whether a new trial should be ordered.

The High Court, comprising Griffith C.J., Barton and O'Connor JJ., considered the nature of the occasion upon which the report was published. It was held that a report by a trade protection agency to its subscribers concerning the credit of a business firm is generally a privileged occasion. However, this privilege is defeated if the plaintiff can prove that the defendant acted with malice. The court examined the evidence presented, including the subsequent report, to determine if it shed light on the defendants' state of mind at the time of the original publication. The onus of proving malice rested on the plaintiff.

The court's decision addressed the specific circumstances of the case, including the admissibility of the later report as evidence of malice and the principles governing new trials. The final orders of the court would have determined the outcome of the defamation claim and the disposition of the appeals.

Orders