RESPONDENT. PLAINTIFF, Defamation-Privilege-Reply to attacks-Attack on newspapers generally - Whether
reply by particular newspaper privileged-Reply containing challenge to sue- Whether excludes plea of privilege-JustificationWhere defamatory matter is charge of dishonest statement.
The editor of a newspaper cannot claim privilege for a defamatory publication merely as being a reply to an attack upon newspapers generally. In any such plea of privilege, it must be made clear that the attack referred to news- papers in which the defendant was interested.
In an action for defamation, the plaintiff sued on an article written by the defendant, the editor of a newspaper in which the article was published. The article contained challenges to sue.
Held, by Latham C.J., Rich, Starke and Williams JJ. (McTiernan J. dissent- ing) that the challenges to sue were no more than an invitation to take proceed- ings which would follow the normal course of defamation proceedings, and their inclusion in the article did not prevent the defendant from setting up, as a plea of qualified privilege, that the article was published by way of defence to attacks publicly made upon the defendant and those whose interests the defendant was entitled to protect.
Form of plea of justification, where the words sued on charge dishonest statements by the plaintiff, considered.
Decision of Dixon J. varied.
APPEAL from Dixon J.
Arthur Augustus Calwell, a member of the House of Representa- tives of the Commonwealth of Australia and one of His Majesty's Ministers of State for the Commonwealth, brought an action for defamation in the High Court against Brian Penton, the editor of
a newspaper, published in Sydney, New South Wales, known as the Daily Telegraph and Daily News.
By his statement of claim, Calwell alleged that, in the issue of the Daily Telegraph and Daily News dated 25th November 1944, the following words were published falsely and maliciously of and concerning himself
'''Even still we find some of the Sydney newspaper proprietors disregarding entirely the safety of this country and trying to jeopardise the fate not only of the people of this country but also of prisoners of war in the hands of the Japanese,' said Mr. Calwell.
The purpose of his speech was to suggest that the Daily Telegraph has defied a censorship instruction in reporting the escape of Japanese prisoners at Cowra.
Mr. Packer (managing director of Consolidated Press) was threatened that if he did anything to jeopardise Australian prisoners he would be dealt with,' said Mr. Calwell. The fact is that the Daily Telegraph did not publish anything the censor asked it not to publish. It submitted its copy in the ordinary way and completely obeyed censor's instructions. In doing SO it yielded to no threats from Mr. Calwell. His attempt to suggest otherwise is a lie. Some time ago we libelled Mr. Calwell deliberately. We do SO again, by saying that he is maliciously and corruptly untruthful. In other words, a dishonest, calculating liar."
Publication in Melbourne in the State of…
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 Penton v Calwell
Sign in free to access the full text
Details
AGLC
Penton v Calwell [1945] HCA 51
Case
[1945] HCA 51
Decision Date
CaseChat Overview and Summary
In *Penton v Calwell*, Arthur Augustus Calwell, a Commonwealth Minister, commenced defamation proceedings in the High Court of Australia against Brian Penton, the editor of the *Daily Telegraph*. Calwell alleged that an article published in the newspaper on 25 November 1944 falsely and maliciously defamed him. The article, in response to a speech by Calwell, accused him of being "maliciously and corruptly untruthful" and a "dishonest, calculating liar," and included a challenge for Calwell to sue the newspaper.
The legal issues before the High Court included whether the article was protected by qualified privilege as a reply to attacks made by Calwell, and the proper form and substance of a plea of justification when the defamatory matter alleges dishonest statements. Specifically, the court had to determine if the inclusion of challenges to sue in the article negated the defence of privilege, and whether the particulars provided for justification adequately supported the claim that Calwell was habitually untruthful.
The High Court, by a majority, held that the challenges to sue did not preclude the defence of qualified privilege. The court reasoned that these challenges were merely an invitation to normal defamation proceedings and did not, in themselves, remove the privilege that might otherwise attach to a reply to public attacks. The court also considered the particulars supporting the plea of justification, noting that while the defamatory words were capable of meaning habitual mendacity, the particulars needed to be carefully framed to establish such a charge, particularly when dealing with statements of opinion or comment. The court varied the decision of Dixon J., allowing amendments to the defence.