ON APPEAL FROM THE SUPREME COURT OF Defamation-Libel-Privilege-Police officer-Report in course of duty.
Held, that a report, made in the course of his duty by an inspector of police SYDNEY,
to his superior officer, which contained defamatory references to a subordinate April 11;
officer, was not the subject of absolute privilege. Aug. 4.
Dawkins v. Lord Paulet, (1869) L.R 5 Q.B. 94, discussed and distinguished. Decision of the Supreme Court of New South Wales (Full Court): Gibbons V. Duffell, (1931) 32 S.R. (N.S.W.) 31, reversed.
APPEAL from the Supreme Court of New South Wales.
An action for libel was commenced by William Resolute Gibbons against Thomas Alfred Duffell based upon a report made by the latter to the Metropolitan Superintendent of Police, New South Wales Police Force, and by consent of the parties a special case was stated submitting a question of law for the determination of the Supreme Court of New South Wales.
The plaintiff, who was a first class constable, had applied for transfer from the police station to which he was attached. It was his duty to make such application through the defendant, who was an inspector of police in charge of the division to which the plaintiff
was attached. The defendant's duty in forwarding such an applica- tion was to make a report in writing to the Metropolitan Superinten- dent of Police, and, when forwarding the application, to express a definite recommendation or opinion thereon. The libel sued upon was contained in the report of the defendant. That report, the declaration alleged, stated of the plaintiff, among other things, that he was not amenable to discipline and was untruthful and had not displayed any outstanding ability; and that it would be seen that the reason given by the plaintiff and two other applicants for transfer showed clearly that it was a concerted action on their part for the purpose of causing annoyance to their officers, to endeavour (sic) their own ends, and cause younger members of the service to follow their example and show their disregard for discipline. It was also set out in the declaration that the report stated that it appeared to the defendant to be nothing less than a conspiracy between them to cast discredit on his reputation and that their reasons given are false, and prove them liars of a very dangerous class, and whilst they remain here he must protect himself to the extent of having one witness at least present before giving any one of them any departmental instructions in future. To this declaration the defendant pleaded "Not guilty."
The question stated for the opinion of the Supreme Court was: Can an action for a libel contained in such a report be maintained or is such a document the subject of absolute privilege ?
The Full Court of the Supreme Court decided that the report was the subject of absolute privilege: Gibbons v. Duffell 1.
From this decision the plaintiff now appealed to…
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.
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Gibbons v Duffell [1932] HCA 26
Case
[1932] HCA 26
Decision Date
CaseChat Overview and Summary
The case of *Gibbons v. Duffell* involved an appeal to the High Court of Australia from a decision of the Supreme Court of New South Wales. The appellant, William Resolute Gibbons, a first-class constable, sued the respondent, Thomas Alfred Duffell, an inspector of police, for libel. The alleged libel was contained in a report made by the respondent to his superior officer, the Metropolitan Superintendent of Police, concerning the appellant's application for a transfer. The Supreme Court had held that such a report was subject to absolute privilege, and the appeal concerned the correctness of this determination.
The central legal issue before the High Court was whether a report made by a police inspector in the course of his duty to his superior officer, containing defamatory statements about a subordinate officer, was protected by absolute privilege. This question required the court to consider the scope of absolute privilege in defamation law, particularly in the context of public service and the specific duties and organisation of the police force, and to determine if it extended to such internal police reports, thereby precluding any action for libel.
The High Court, in allowing the appeal, reasoned that while certain communications, such as those in judicial or parliamentary proceedings, or between high-ranking state officials concerning matters of state, are afforded absolute privilege due to the paramount importance of free and fearless utterance for the administration of justice, legislative functions, or high executive duties, this privilege should not be extended to reports made by police officers within the force. The court distinguished the police force from the military, noting that the latter's unique disciplinary structure and role in national defence might justify a broader application of privilege. The court found that the functions of a police inspector were not of such a delicate or consequential nature as to necessitate absolute immunity from suit, and that the discipline of the police force could be maintained even if officers were required to act honestly and for the purpose of their duties when making such reports, without fear of malicious defamation claims.
The High Court reversed the decision of the Supreme Court of New South Wales. It held that the report in question was not subject to absolute privilege, meaning that an action for libel could potentially be maintained by the appellant, provided the privilege was not absolute and could be defeated by proof of malice. The appeal was allowed, and the order of the Supreme Court was discharged.