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Macintosh v Dun

Macintosh v Dun

Case [1908] UKPCHCA 3 3 June 1908

Defamation

Privilege

Malicious Communication

Qualified Privilege

Defamation

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6 CLR 303

efamation-Privileged occasion-Trade protection agency-Report as to credit of

business firm - Communication to subscribers - Voluntary communication-

A trade protection society, in the ordinary course of its business, published to one of its subscribers, a firm of hardware merchants in Sydney, in response to a specific and confidential inquiry, a confidential report containing damag- ing statements as to the commercial standing and financial position 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 not privileged, inasmuch as the defendants were acting from motives of self-interest, and not from a bona fide sense of duty or for the general interest of society, in publishing the libel,

Held further, that, where a communication is not made in the legitimate defence of a person's own interest, or under a sense of duty, the fact that the information is volunteered is evidence of malice.

Decision of the High Court: Dun v. Macintosh, 3 C.L.R., 1134, reversed.

APPEAL to His Majesty in Council from the decision of the High Court: Dun v. Macintosh 1.

*Present.-Lord - Loreburn, L.C., Lord Ashbourne, Lord Macnaghten, Lord Robertson, Lord Atkinson, and Lord Collins.

13 C.L.R., 1134.

6 CLR 304

The judgment of their Lordships was delivered by

LORD MACNAGHTEN. This is an appeal from a decision of the High Court of Australia pronounced on cross-appeals from two orders of the Full Court of New South Wales.

The action was an action for libel. It was tried before Cohen J., and a jury. The plaintiffs obtained a verdict for £800. The Full Court set the verdict aside, but directed a new trial 1. The High Court entered judgment for the defendants 2.

The question, and the only question on the present appeal, is whether the occasion on which the libels were published was or was not a privileged occasion.

The plaintiffs are wholesale and retail ironmongers in Sydney. The defendants (as their acting manager in Sydney stated in an affidavit filed in the action) carry on the business of a trade protective society " in almost all parts of the civilized world" under the name of "The Mercantile Agency." That business, as the acting manager explained, consists in obtaining information with reference to the commercial standing and position of persons" in the State of New South Wales " and elsewhere and in communicating such information confidentially to subscribers to the Agency in response to specific and confidential inquiry on their part." He stated further that all requests for information directed to the Agency by their subscribers are in the following form :-

Subscriber's Ticket. The Mercantile Agency.

R. G. Dun and Co. Established 1841. Give us in confidence and for our exclusive use and benefit in our business, viz., that of aiding us to determine the propriety of giving credit, whatever information you have respecting the standing, responsibility, &., of-

Street Address State

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 Macintosh v Dun

Details

AGLC: Macintosh v Dun [1908] UKPCHCA 3
Case: [1908] UKPCHCA 3
Decision Date: 3 June 1908

CaseChat Overview and Summary

The case of Macintosh v Dun involved a dispute between two hardware merchant firms in Sydney, where the defendants, a trade protection society, published a damaging report about the plaintiffs' commercial standing and financial position in response to a specific inquiry from one of their subscribers. The plaintiffs brought an action for libel against the defendants. The central issue before the court was whether the occasion on which the libel was published was privileged, allowing the defendants to escape liability. The court had to determine if the defendants' actions were motivated by a sense of duty or the general interest of society or if they were driven by self-interest.

The court examined the principles of privileged occasions for communication in the context of the defendants' business operations. It noted that such communications are protected when made in the discharge of a public or private duty or in the conduct of one's own affairs, provided they are free from actual malice. The court found that the defendants' actions were not motivated by a sense of duty or for the general interest of society but rather by self-interest. They carried on their trade with the hope of making a profit by collecting and selling information about other businesses. This motive of self-interest disqualified the occasion from being privileged. The court emphasised that while obtaining accurate information about competitors may be beneficial to traders, the methods used to gather such information could be unfair and detrimental to society.

The court concluded that the defendants' actions did not meet the criteria for a privileged occasion and that the High Court's decision should be reversed. The Privy Council advised that the orders appealed from should be discharged, the judgments of the Full Court reversed, with costs in both courts, including the costs of the cross-appeals, and that any costs already paid by the appellants to the respondents should be repaid by the latter. The respondents were also ordered to pay the costs of the appeal.

Orders