registered as medical practitioner in South Australia-Plaintiff holding himself out as medical practitioner-Contravention of Medical Practitioners Act 1919 (S.A.)-Libel affecting plaintiff as to private character as well as to vocation- Privilege-Fair comment-Damages-Trial ty Judge without jury-Excessive May 17, 18, damages-Medical Practitioners Act 1919 (S.A.) (No. 1372), sec. 35.

The plaintiff, who was a Doctor of Medicine of a German University, brought an action for libel against the proprietor and the printer of a newspaper. The plaintiff had attempted to register himself as a medical practitioner under the Medical Practitioners Act 1919 (S.A.), but was refused registration. He, nevertheless, practised medicine in South Australia; and, in contravention of sec. 35 of the Medical Practitioners Act, held himself out as qualified to practise. The published matter of which the plaintiff complained in substance described him as a person with a discreditable past, who treated patients in an incom- petent manner and with a reckless indifference to the dangerous character of a particular drug he prescribed, and whose treatment had in some instances brought about the death of the patient. The action was tried in South Australia by

a Judge without a jury. The Judge held that the libel complained of affected the plaintiff not only in his character as a German physician and surgeon but in his private character also, and awarded him £5,000 damages. On appeal to the High Court,

Held, by the whole Court, (1) that a person who pursues an unlawful vocation or engages in unlawful acts or transactions cannot maintain an action for libel regarding his conduct in such vocation, acts or transactions, but that

47 CLR 280

does not deprive him of his absolute right to his personal character and professional reputation unaffected by defamatory statements ultra that vocation or those acts or transactions: (2) that the defendants could not rely upon the plaintiff's illegal acts as affording a defence to the action, because the libel affected the plaintiff not only in the way of the vocation he was illegally carrying on but in his private character also (3) that the defences of justifica- tion, privilege and fair comment failed, and the plaintiff was entitled to dam-

But held, by Rich, Starke, Dixon and McTiernan JJ., that no damages should be given for loss of gains attributable to a past or future course of infringement upon the statute: and, by Evatt J., that damages should not be given in respect of imputations affecting that part of the plaintiff's reputation which was founded on his course of illegal holding out.

Per Evatt J.: The law refuses to accord any protection to a plaintiff's reputa- tion SO far as it is shown to be founded upon illegal acts: even if those illegal acts are quite distinct and separable from the published imputations injurious to a reputation so acquired, such injury should…

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 Smith's Newspapers Ltd v Becker

Details

AGLC: Smith's Newspapers Ltd v Becker [1932] HCA 39
Case: [1932] HCA 39
Decision Date: 15 August 1932

CaseChat Overview and Summary

The High Court of Australia heard an appeal from the Supreme Court of South Australia concerning a defamation action brought by Johannes Heinrich Becker against Smith's Newspapers Limited. Becker, a German-qualified medical doctor, had been refused registration in South Australia and subsequently practised medicine there while holding himself out as a qualified practitioner, in contravention of the Medical Practitioners Act 1919 (S.A.). The newspaper published an article alleging Becker had a discreditable past, was incompetent, and had prescribed a dangerous drug with fatal consequences for some patients. The trial judge awarded Becker £5,000 in damages, finding the libel affected both his professional and private character.

The central legal issues before the High Court were whether Becker, by engaging in an unlawful vocation, was precluded from maintaining an action for libel concerning his conduct within that vocation. The court also had to determine if the defendants could rely on Becker's illegal acts as a defence, and whether the defences of justification, privilege, and fair comment were valid. Finally, the court considered the quantum of damages awarded, particularly whether any portion of the award was attributable to the plaintiff's illegal activities.

The High Court held that while a person engaged in an unlawful vocation cannot sue for libel concerning their conduct within that vocation, they retain an absolute right to protection for their personal character and professional reputation unaffected by defamatory statements beyond that unlawful conduct. The defendants could not rely on Becker's illegal acts as a complete defence because the libel extended to his private character. The defences of justification, privilege, and fair comment were found to have failed. However, a majority of the court determined that damages should not be awarded for losses attributable to Becker's infringement of the statute, and that imputations affecting his reputation derived from his illegal holding out should not be compensated.

By a majority, the High Court varied the decision of the Supreme Court of South Australia, reducing the damages awarded to Becker from £5,000 to £2,500. This reduction reflected the principle that compensation should not be granted for losses stemming from illegal activities or for damage to a reputation built upon unlawful conduct.

Orders