Wilkinson v S Bennett Limited - [1921] HCA 14

S. BENNETT LIMITED

RESPONDENT DEFENDANT, Defamation-Libel-Pleading-Declaration, sufficiency of-Prefatory averments not

supporting innuendo Words not defamatory in themselves-Demurrer-Com mon Law Procedure Act 1899 (N.S.W.) (No. 21 of 1899), sec. 72.

Sec. 72 of the Common Law Procedure Act 1899 (N.S.W.) provides that " In actions of libel and slander the plaintiff may aver that the words or matter complained of were used in a defamatory sense, specifying such defamatory sense, without any prefatory averment to show how such words or matter were used in that sense, and such averment shall be put in issue by the denial of the alleged libel or slander, and where the words or matter set forth with or without the alleged meaning show a cause of action the declaration shall be

Held, that the meaning of that section is that a plaintiff in an action of libel or slander may set out in his declaration the words of which he complains and an innuendo stating the meaning which he alleges they bear, and, if the words either in their natural meaning or in that alleged in the innuendo are defamatory, the declaration is sufficient and that this is so whether the words complained of are or are not in themselves defamatory, whether the declaration does or does not also contain a prefatory averment of facts upon which the plaintiff relies to support the innuendo, and whether the prefatory averment, if there is one, does or does not support the innuendo.

Held, therefore, that in an action of libel a declaration which contained a prefatory averment was not open to demurrer on the ground that the facts alleged in the prefatory averment did not support the innuendo.

Thurston v. Hatley, 10 S.C.R. (N.S.W.), 173, and Nicholls v. Australian Newspaper Co., 17 N.S.W.L.R., 27, overruled.

Decision of the Supreme Court of New South Wales Wilkinson v. S. Bennett Ltd., 20 S.R. (N.S.W.), 689, reversed.

29 CLR 284

A. APPEAL from the Supreme Court of New South Wales.

An action was brought in the Supreme Court by Thomas Wilkinson against S. Bennett Ltd. in which, by his declaration, the plaintiff sued the defendant for that before and at the time of the publica- tion of the defamatory matters hereinafter mentioned the plaintiff had been for a long time and was then possessed of a small cottage at Perouse Street, Randwick, wherein he dwelt with his wife and young family included amongst whom was a son Thomas Anderson Wilkin son, aged 18 years, and large quantities of clothing, jewellery and silverware could not have been stored on the said premises by reason of the size and arrangement of the same by any persons without the plaintiff's knowledge, and large quantities of jewellery, clothing and silverware to the value of about £1,000 had been stolen by certain people including the said Thomas Anderson Wilkinson from and about the districts of Kensington and Randwick, and the defendant was the proprietor, printer and publisher of a newspaper called the Evening…

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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Details

Case: [1921] HCA 14
Decision Date: 18 April 1921

CaseChat Overview and Summary

This case involved an appeal to the High Court of Australia from a decision of the Supreme Court of New South Wales. The appellant, Thomas Wilkinson, had brought an action for libel against the respondent, S. Bennett Ltd., alleging that the respondent had published defamatory words concerning him in its newspaper. The respondent demurred to the appellant's declaration, which the Supreme Court upheld, entering judgment for the defendant.

The central legal issue before the High Court was the interpretation and application of section 72 of the Common Law Procedure Act 1899 (N.S.W.). Specifically, the court had to determine whether a declaration in a libel action, which included prefatory averments intended to support an innuendo, could be demurred to on the ground that those averments did not sufficiently support the alleged defamatory meaning. The Supreme Court had ruled that such a demurrer was valid, relying on established practice and prior decisions.

The High Court, in allowing the appeal, found that section 72 of the Act provided that a declaration in libel or slander was sufficient if it set out the words complained of and an innuendo stating the alleged meaning, provided that the words were defamatory either in their natural meaning or as alleged in the innuendo. The Court held that the inclusion of prefatory averments, even if they did not support the innuendo, did not render the declaration demurrable. The Court reasoned that the plain language of section 72 applied to all actions of libel and slander and did not permit the addition of qualifications that would restrict its application. Consequently, the previous decisions of *Thurston v. Hatley* and *Nicholls v. Australian Newspaper Co.*, which had established the contrary practice, were overruled. The Court also indicated that a jury might reasonably find the innuendo proved in this case.

Orders