NEW SOUTH WALES. Defamation-SlanderPrivileged occasion-Club roomCards---Argument-Dis-
honesty charged by member of committee-Presence of many members and non-members of club-Malice-DamagesTrialConduct of counsel-Offer on behalf of plaintiff to give damages to Red Cross Society-New trial. April 1,
The plaintiff, a regular visitor at a Greek club, was playing cards with May 8.
a member and another non-member in a room containing between fifty and sixty people both members and non-members. Of these some were playing cards, others billiards, others conversing. The defendant, who was a member of the club and a committeeman, was an onlooker at the game in which the plaintiff was participating. There was a dispute between the players in which the defendant intervened criticising the plaintiff's conduct. A few minutes later the defendant said in a loud voice audible to the other persons in the room: "You are a crook." In an action for slander in respect of the last-mentioned words the trial judge directed the jury that the defence of qualified privilege was not open to the defendant. The jury awarded the plaintiff £500.
Held, by Latham C.J., Starke, McTiernan and Williams JJ. (Dixon J. dissent- ing), that the words complained of were not spoken on a privileged occasion.
At the trial counsel for the plaintiff in his opening address to the jury stated that damages, if recovered, would be given by the plaintiff to the Red Cross Society. Counsel for the defendant objected to this statement and asked that his objection be noted.
Held, by Latham C.J., McTiernan and Williams JJ. that as counsel for the defendant had not asked the trial judge to discharge the jury at the time the statement was made, the verdict of the jury should not now be disturbed.
Decision of the Supreme Court of New South Wales (Full Court): Guise V. Kouvelis, (1946) 46 S.R. (N.S.W.) 419; 63 W.N. (N.S.W.) 272, reversed.
In an action brought in the Supreme Court of New South Wales, Nickolas Guise claimed damages from John Kouvelis for slander alleged to have taken place on the premises of the Hellenic Club, Castlereagh Street, Sydney.
The Hellenic Club is a social centre of a number of the members of the Greek community living in Sydney and the larger proportion of the people who frequent it are non-members. The plaintiff was not a member of the club but had been there on several other occasions and, apparently, was accepted as a guest of the club. During the evening of 22nd May 1945 there were, according to the plaintiff, some fifty or sixty persons in the club-room, but according to the defendant only twenty or twenty-five persons were present in the club-room. Some of them were conversing between themselves, others were playing billiards and some were playing cards. The plaintiff was invited by one Speros Zervos to play a game of cards called prefa for monetary stakes and…
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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AGLC
Guise v Kouvelis [1947] HCA 13
Case
[1947] HCA 13
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal and cross-appeal from a decision of the Supreme Court of New South Wales concerning an action for slander. The appellant, Nickolas Guise, had sued the respondent, John Kouvelis, for allegedly calling him a "crook" in a loud voice in the Hellenic Club. The trial judge had ruled that the occasion was not privileged, and the jury awarded the appellant £500 in damages. However, the Full Court of the Supreme Court, by majority, set aside this verdict and ordered a new trial, finding that the occasion should have been considered privileged.
The central legal issue before the High Court was whether the occasion on which the words "You are a crook" were spoken was one of qualified privilege. This involved determining whether the respondent, as a member of the club, had a legal, social, or moral duty to make such a statement, or a legitimate interest in doing so, to the persons present in the club room at the time. A secondary issue concerned the conduct of the appellant's counsel in stating to the jury that any damages recovered would be donated to the Red Cross Society, and whether this warranted a new trial.
A majority of the High Court (Latham C.J., Starke, McTiernan, and Williams JJ.) held that the occasion was not privileged. They reasoned that while members of a club may have an interest in the character of other members or frequent visitors, this interest did not warrant a public broadcast of an accusation of dishonesty within the club. The Court found that the respondent's interest, or any purported social or moral duty, was adequately protected by reporting concerns to the club committee, rather than making a defamatory statement in a room containing both members and non-members. The Court also held that while the statement about donating damages to the Red Cross was improper, the trial judge's immediate correction and the lack of a subsequent application for a discharge of the jury meant the verdict should not be disturbed on that ground.
Consequently, the High Court allowed the appeal, set aside the judgment of the Full Court, and restored the original judgment for the appellant. The cross-appeal by the respondent, seeking a verdict in his favour, was dismissed.