ON APPEAL FROM STARKE J. Libel-Joint liability-Privilege-Publication by agent-Malice of agent-Know-
ledge of untruth of statements-Liability for agent's statements- Publication' - Justification-Appeal-Duty of appellate Court-No disputed evidentiary facts- Jurisdiction.
The plaintiff in an action for libel was the chairman of the South Australian Wheat Compensation Committee, the object of which was to endeavour to obtain compensation from the Government of South Australia for alleged Gavan Duffy JJ.
negligence in keeping and protecting certain wheat delivered to it for sale on behalf of growers. The defendants, B., P., M. and C. were members of a Victorian Committee which had a similar object. The persons for whom these Committees acted were growers who had delivered wheat to the Govern- ment for sale, and purchasers of scrip issued in respect of the wheat so delivered. Various legal proceedings were instituted against the Government and were controlled by one or other of these Committees. The same solicitor acted for both Committees. The South Australian Committee arranged to abandon the litigation of which it had control, and the Victorian Committee desired to carry on proceedings and for that purpose to appeal to South Australian subscribers to furnish further funds. The solicitor was employed by the Victorian Committee to compose, for the purpose of publication, a form of circular he would advise being sent to each grower and he submitted a draft circular to B., who was the secretary of the Victorian Committee. B. instructed the solicitor to publish the circular in the way he thought most advisable and B.'s action in SO doing was confirmed by P., M. and C. The solicitor published the circular but only to persons who had delivered wheat to the Government for sale and to purchasers of wheat scrip. The eircular contained untrue matter defamatory of the plaintiff. On the view taken of the evidence by the majority of the appellate Court, the solicitor did not believe in the truth of certain of the defamatory matter in the circular; at the time of publication B. knew the contents of the circular and did not believe in the truth of certain of the defamatory matter therein; P. was unaware of the contents of the circular, but was in fact aware of the untruth of defamatory statements in it concerning the plaintiff M. and C. were unaware of the The defendants pleaded (inter alia) justification and publication without malice on a privileged occasion. On appeal from the judgment given by the trial Judge in favour of the defendants,
Held, by Knox C.J. and Isaacs J. (Gavan Duffy J. dissenting), that the appeal should be allowed:
By Knox C.J. and Isaacs J., on the ground that the defendants were all responsible in law for the publication, and, although the occasion was privileged, as B. and the solicitor knew the circular contained untrue defamatory statements concerning the plaintiff, malice was to be attributed to them, and such malice defeated the privilege of all…
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
Webb v Bloch [1928] HCA 50
Case
[1928] HCA 50
Decision Date
CaseChat Overview and Summary
The plaintiff, Thomas Henry Webb, chairman of the South Australian Wheat Compensation Committee, brought an action for libel against the defendants, Mark Bloch, Joseph Cleveland Pratt, F. v. Murphy, and H. S. Crocker, who were members of a similar Victorian Committee. The dispute arose from the publication of a circular containing statements alleged to be defamatory of the plaintiff, concerning his role in the abandonment of legal proceedings against the South Australian Government for alleged negligence in handling wheat. The case was heard by Starke J. in the Supreme Court of South Australia, who found in favour of the defendants. The plaintiff appealed this decision to the Full Court.
The Full Court was required to determine several legal issues. Primarily, it had to consider whether the defendants were jointly liable for the publication of the defamatory circular, even though some of them had not seen its contents before publication. The court also had to assess whether the occasion of publication was privileged, and if so, whether that privilege was defeated by malice. A further issue was the extent to which the malice of an agent, in this case, the solicitor who drafted and published the circular, could be attributed to the principals (the defendants) and thus destroy the defence of privilege. The court also considered the defence of justification, which alleged the truth of the defamatory statements.
A majority of the Full Court, comprising Knox C.J. and Isaacs J., allowed the appeal. They held that all defendants were legally responsible for the publication of the circular. While acknowledging the occasion was privileged, they found that the solicitor who prepared and published the circular, and the defendant Bloch who instructed its publication, possessed knowledge of the untruth of certain defamatory statements within it. This knowledge was deemed to constitute malice, which, in turn, defeated the privilege claimed by all the defendants. Isaacs J. also made observations regarding the duty of an appellate court in cases with no disputed evidentiary facts, and the meaning of "publication" and the defence of justification.
The appeal was allowed, and the judgment of the trial judge in favour of the defendants was set aside.