SUN NEWSPAPERS LIMITED AND ANOTHER RESPONDENTS. Defamation-Libel-Privileged occasion-Attack in newspaper and reply containing
relevant defamatory statements-Simultaneous publication-Authority to publish attack-Privilege of person attacked-Privilege of newspaper proprietor.
An article published in a newspaper contained extracts from a letter written to the newspaper by the secretary of the Canterbury District Unemployed Relief Council attacking the Canterbury Municipal Council with respect to its refusal of relief work to the plaintiff. The same article contained a statement in reply, made for publication by the town clerk of the Municipality of Canter- bury, that the plaintiff had been refused further relief work because of 'general unsatisfactory conduct, which included abuse of gangers and the spreading of restlessness among his fellow employees." The plaintiff sued the proprietor of the newspaper and the town clerk in libel, but was nonsuited in respect of
Held, by the whole court, that upon the basis that the plaintiff authorized the sending of the letter written by the secretary of the Canterbury District Unemployed Relief Council to the newspaper, the occasion was one of qualified privilege as regards both defendants, and, by Latham C.J. and Starke J., that there was at the trial undisputed evidence of such authority; but by Dixon J., that on the evidence given at the trial the jury was not bound to find such authority, and in the absence of such authority the town clerk was, but the newspaper proprietor was not, entitled to the benefit of the qualified privilege.
Held, therefore, by Latham C.J. and Starke J., that the judgment of nonsuit had been rightly entered in respect of both defendants by Dixon J., that it had been rightly entered in respect of the town clerk, but not in respect of the newspaper proprietor.
Decision of the Supreme Court of New South Wales (Full Court): Loveday V. Sun Newspapers Ltd., (1937) 38 S.R. (N.S.W.) 63; 54 W.N. (N.S.W.) 194,
APPEAL from the Supreme Court of New South Wales.
In an action brought in the Supreme Court of New South Wales, the plaintiff, Frederick Loveday, sought to recover from the defen- dants, Sun Newspapers Ltd. and Edgar Jay, the sum of £1,000. It was alleged in the declaration that the defendants by themselves their servants and agents falsely and maliciously published of the plaintiff in a newspaper called the Sun the words following, that is to say 'The Canterbury town clerk said that the man concerned (thereby meaning the plaintiff) had been refused further relief because of "general unsatisfactory conduct which included abuse of gangers and the spreading of restlessness among his fellow employees," the defendants meaning thereby that the plaintiff was an undesirable and abusive person who engaged in subversive and improper activities and was generally a person of doubtful character."
The defendants entered a plea of not guilty. The defendant Jay was the town clerk of the municipality of Canterbury.
At the trial of the action the plaintiff's counsel put in the issue of the Sun newspaper of 12th…
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
Loveday v Sun Newspapers Ltd [1938] HCA 28
Case
[1938] HCA 28
Decision Date
CaseChat Overview and Summary
Frederick Loveday brought an action for libel against Sun Newspapers Ltd. and Edgar Jay, the town clerk of Canterbury. The dispute arose from an article published in the Sun newspaper which contained extracts from a letter written by the secretary of the Canterbury District Unemployed Relief Council attacking the Canterbury Municipal Council regarding its refusal of relief work to Loveday. The same article included a statement in reply, made by the town clerk, alleging that Loveday had been refused further relief work due to "general unsatisfactory conduct, which included abuse of gangers and the spreading of restlessness among his fellow employees." The plaintiff sued for libel, but was nonsuited at trial. The matter proceeded to the Full Court of the Supreme Court of New South Wales, and then to the High Court of Australia on appeal.
The legal issues before the High Court were whether the occasion of the publication was one of qualified privilege for both defendants, and if so, whether there was sufficient evidence of malice to be left to the jury. Specifically, the court had to determine if the plaintiff had authorised the letter sent to the newspaper, which was a prerequisite for establishing privilege in this context, and whether the newspaper proprietor, as distinct from the town clerk, was entitled to the protection of qualified privilege.
The High Court, by a majority, held that if the plaintiff authorised the sending of the letter to the newspaper, then the occasion was one of qualified privilege for both the town clerk and the newspaper proprietor. Latham C.J. and Starke J. found that there was undisputed evidence at the trial that the plaintiff had authorised the letter. They reasoned that the plaintiff, having chosen the public press to air his grievance, could not complain if the defendant used the same medium for a relevant reply. This privilege extended to the newspaper proprietor publishing the town clerk's response. However, Dixon J. dissented on the newspaper proprietor's entitlement to privilege, finding that on the evidence presented, a jury was not bound to find the plaintiff had authorised the letter. He concluded that in the absence of such authorisation, the town clerk was entitled to privilege, but the newspaper proprietor was not.
Consequently, Latham C.J. and Starke J. held that the judgment of nonsuit had been rightly entered in respect of both defendants. Dixon J. held that the nonsuit was rightly entered in respect of the town clerk, but not in respect of the newspaper proprietor. The appeal was ultimately dismissed, with no order as to costs.