Godhard v James Inglis & Co Ltd [1904] HCA 37; (1904) 2 CLR 78 (1 December 1904)

Godhard Plaintiff, Appellant; and James Inglis & Co. Ltd. Defendants. Respondents;

This was an action for written defamation published in a trade newspaper or pamphlet.

The plea of not guilty put in issue the questions whether the matter was defamatory, whether it applied to the plaintiff, and whether its publication was justifiable under the circumstances, as fair comment upon a matter of public interest.

As to the first question, whether the matter was defamatory, no question arises, but as to the third, that is, whether the publication was justified under the circumstances, a great deal of evidence was given, upon which, it was conceded by counsel, a verdict might have been given either way. But the difficulty that arises before us is as to the question whether the libel applied to the plaintiff or not, that is to say, whether it was published of and concerning him. Upon that it will be convenient first to refer briefly to the language of the libel itself. The article complained of is a criticism of the system upon which what are called coupon companies are managed. [His Honor then read the greater part of the article, which is set out above, and proceeded:]

Bearing in mind that this was a business carried on by a joint stock company, and that the business of such a company can only be carried on by individuals, it is clear that the article was capable of referring to the persons who were engaged in the business of carrying on this particular company. Even if there were any doubt whether it did as a matter of fact apply to those persons, it would be quite sufficient that it was capable of applying to them, because it would be for the jury to say whether it did refer to them, in the sense of being directed at the individuals who managed the business, as well as at the company under whose name the business was carried on. As to what the article was intended by the defendants to mean, no question can arise, because the defendant Inglis, in his own evidence, in cross-examination, admitted that he knew of the existence of the company; indeed that was not disputed. He said: "When I said tiddley-winkin commissions I meant commissions unfair and not straightforward. By palm-greasing I mean giving presents to persons to make them hold their tongues. I mean that the company itself was doing this, and its servants, employés, and others. I mean the same thing when I speak of the manipulators—the promoters of the business—those who were carrying it on." The defendant therefore says, what the jury might have inferred without his admission; that this article was intended to apply to the persons who carried on the business. That is a distinct admission by the manager of the defendant company, who says that he was the writer of the article. There can be no question therefore who were the persons to whom he intended to refer, that is to say, the owners or promoters of the business, those who were carrying it on. The matter was therefore, as the jury might have found, defamatory, and defamatory of the persons engaged in the business. The defendant Inglis went on to say that he did not know anything about the plaintiff being connected with the company, that his attack was upon the persons who carried on the business, but that he was not personally aware that the plaintiff was one of them. On that evidence, the defendants set up that they were not responsible to the plaintiff for the publication of the libel, that is to say, that it could not be said to have been published of and concerning the plaintiff, inasmuch as the writer had no knowledge that the plaintiff personally was one of the persons concerned in what he describes as a nefarious business. The learned Chief Justice purported to direct the jury in accordance with the decision in the case of Le Fanu v. Malcolmson[1], and he read to the jury portion of the judgment in that case as part of his summing up. According to His Honor's notes of what took place at the trial, the learned counsel for the plaintiff asked him to tell the jury that it was immaterial whether the defendant Inglis intended to refer to the plaintiff or not, if the article was in fact capable of being, and was, understood by persons reading it, to refer to him. "I refused," he says, "to do this, as I had directed the jury that the plaintiff must prove that the words were written and published by the defendant company of and concerning the plaintiff, and were intended by the defendants to apply to the plaintiff." In one sense that direction is, I think, quite free from objection. It was contended before us by the learned counsel for the appellant that it does not matter who is the person to whom the writer of a defamatory article intends it to refer, provided that the words he uses are capable of referring to the plaintiff, and witnesses are called to prove that they understood them to refer to him. On that point he referred us to the case of Bromage v. Prosser[2] and other cases, but in those cases it was held that, it being conceded that the plaintiff was the person spoken of, the defendant could not say that he did not intend to defame him, or do him any injury, when he used the words complained of. But it does not by any means follow, when the question is, who is the person spoken of, that the defendant can say that he did not mean to refer to the plaintiff at all. During the argument I gave this illustration. A defendant publishes defamatory matter concerning a man A. B., which might or might not be justified. Some other person named A. B., or friends of his, mistakenly think that the publication refers to him, and he brings an action. As at present advised, I am disposed to think that an action would not lie. The apparent reference to the second A. B., would in that case be an accident. If a man is doing a lawful act in speaking of A. B., that is to say, publishes defamatory matter of him which he is justified in publishing, it would be a very strange thing if his act should become unlawful because one of his hearers or readers misunderstood his reference. The direction which the learned Judge was asked by counsel to give, was therefore erroneous, and the direction given to the jury "that the plaintiff must prove that the words were written of and concerning him, and were intended by the defendant company to apply to the plaintiff," is in one sense perfectly correct. If the person defamed in the article was not the plaintiff, the plaintiff cannot complain. But that applies only where the question is, was it the plaintiff or somebody else of whom the defamatory matter was published. For the purpose of that inquiry it may be conceded that the matter in question is defamatory, and that the question is, who was the person defamed, was it the plaintiff or somebody else? For that purpose the identity of the plaintiff may be proved in the same way as in other cases, as for instance in criminal cases. But, though the words of the learned Judge's direction are in one sense perfectly correct, it is clear, when the whole summing up is read, and is taken in conjunction with the circumstances of the case as disclosed in the evidence, that his words were not used in that sense, but in the sense that it was necessary, before the plaintiff would be entitled to a verdict, to prove that the writer of the article had the plaintiff personally in his mind, not merely as some unknown person who came within the category of manipulators, &c., but as an individual member of society, the man, Godhard. It is quite clear from the passages read to us from the summing up of the learned Judge, and it is not indeed disputed, that he stated, amongst other things, that the defendant must be shown to have had the plaintiff in his mind when he wrote the article, before the plaintiff could recover. He says: "If he had not him in his mind when he wrote it, ... the question is whether he knew that the plaintiff was connected with the company ... if you think Inglis says truly that he knew nothing of Godhard, and had no intention of applying it to him, you must find for the defendants ... if you think that the defendant on the other hand, intended a personal attack upon Godhard, the latter is entitled to a verdict," and His Honor adds, "I directed the jury that the defendant must have had Godhard in his mind when he wrote the article." The question raised, therefore, is whether the writer of matter defamatory of persons who are unknown to him, but are so described in the article that their identity is apparent to everybody familiar with the circumstances, is entitled to go free. For that position the learned Chief Justice relied on the case of Le Fanu v. Malcolmson[3]. That was an action for libel brought in Ireland. There were several counts in the declaration, of which the second count alleged a libel beginning thus: "No person, unless one who is perfectly acquainted with the workings of the Irish factories, can form the slightest idea of the cruelties and miseries to which the Irish factory hands are subject. I know some factories in this country, and the cruelty with which the operatives in them are used is really incredible." The plaintiffs, who were the owners of a factory in Ireland, alleged by innuendo that by the words "some factories" the defendants intended to refer to them. There were five counts, and the jury gave a general verdict in favour of plaintiff, so that, if any count was bad, the whole verdict fell and error was brought on the ground that the second count was demurrable. The question that was argued before the House of Lords was whether the charge, that in some factories "the cruelty with which operatives were treated was incredible" could by innuendo be made to apply to the plaintiffs. A number of ancient cases and authorities were cited, in which defamatory words had been published that were ambiguous in their terms. For instance one was an action on the words "my enemy," and it was held that it could not be proved what was meant by "my enemy." In another case the words were "I know one near about J.S. that is a notorious thief," as to which it was held that it could not be established by innuendo who was referred to. In another case, in 1 Ro. Ab., 81, the words were "one of my brothers," in which it was said that no particular brother could bring an action. Whether these cases should now be treated as good law it is not material for us to consider, but the point raised was, as I have stated, that, the words "some factories" having been used, the plaintiffs, as owners of a factory, could not prove that theirs was one of the factories meant by that term. It was not disputed, or questioned in any way, that if the plaintiffs' factory was one of the class referred to, the plaintiffs, as the owners of the factory could maintain the action. It did not occur to the learned counsel in that case, in the course of a very lengthy and exhaustive argument, to raise any such point as that. The question before the House of Lords being what it was, the language used must of course be interpreted with reference to that question, and to the particular circumstances of the case. Lord Cottenham, L.C., in his judgment says[4]: "The first proposition contended for is that this is a complaint of the publication of a libel which, although found by the jury as intended to apply to the plaintiffs is so framed that no innuendo, even after verdict, can support the declaration in which that complaint is made. Now the question is not whether the matter complained of is libellous, for about that no question can be raised." And again, "But the way in which the plaintiffs are referred to is expressed by the term some factories. If the same tyranny is carried on in the English factories as in some of the Irish ones, and a little further it goes on, No person unless one who is perfectly acquainted with the working of the Irish factories can form any, the slightest, idea of the cruelties and miseries to which the Irish factory hands are subject. I know some factories in this country; and the cruelty with which the operatives in them are used is really incredible. The cruelties of the slave trade or the Bastille are not equal to those practised in some of the Irish factories."

Now, pausing there, the question for the jury in the present case, if the opinion of Lord Cottenham is followed, would be, "Did the defendants in the defamatory publication allude to the plaintiff's company?" That was all the jury found in that case, or were asked to find; but in this case that matter is not in controversy at all, because the defendant Inglis admitted in his evidence that he did intend to refer to the plaintiff's company and its owners and managers. The Lord Chancellor then went on, after referring to the finding of the jury[5]: "In that state the question arose below, and arises here, whether the judgment founded upon that verdict can be maintained on such a declaration; that is to say, where terms are used which must have reference to some one (for the term some of the Irish factories must evidently apply to some Irish factories); and the innuendo is that the words do apply to the plaintiff's factory; and the jurors have found that that innuendo is true, and that the plaintiffs, who are the proprietors and owners of a factory in Ireland, were the persons meant. If a party can publish a libel so framed as to describe individuals, though not naming them, and not specifically describing them by any express form of words, but still so describing them that it is known who they are, as the jurors have found it to be here, and if those who must be acquainted with the circumstances connected with the party described may also come to the same conclusion, and may have no doubt that the writer of the libel intended to mean those individuals, it would be opening a very wide door to defamation, if parties suffering all the inconvenience of being libelled were not permitted to have that protection which the law affords. If they are so described that they are known to all their neighbours as being the parties alluded to, and if they are able to prove to the satisfaction of a jury that the party writing the libel did intend to allude to them, it would be unfortunate to find the law in a state which would prevent the party being protected against such libels." Again, after referring to the authorities, and, in particular to the case of Solomon v. Lawson[6], which had been referred to in the argument as containing the existing law on the subject, he says[7] "that being the only case in support of the argument, that the individual libelled must be expressly named, or unmistakably referred to, and, there being, I believe, a very general practice to the contrary, I cannot think the proposition is at all established, that under the circumstances of this case the innuendo found to be proved by the jury is not sufficient to entitle the party to the remedy he asks." Lord Campbell said[8]:

These are parts of the judgment from which the learned Chief Justice read a passage to the jury, but he appears to have interpreted it to mean that a person who publishes defamatory matter is not liable unless he has the individual plaintiff in his mind as the object of his attack. But the injury, as was pointed out by Lord Campbell, is done if a man is pointed out in such a way that any reader of the article may know who it is that is being attacked. The injury is done just as much as if he had been named, and the fact that the defendant does not know who is the person to whom his designation applies, can make no difference. A man who makes an attack upon an individual by a description which applies distinctly to that individual, is not entitled to excuse himself by saying: "I did not know that he was the man." Some businesses are carried on anonymously, and if a person carrying on such a business were attacked unwarrantably, it would surely be no excuse for the defendant to say, when sued, "I did not know the plaintiff, I never saw him before." To apply the language of Lord Cottenham again, "There being, I believe, a very general practice to the contrary, and common sense being entirely to the contrary," I cannot see that there is any necessity for the individual libelled to be expressly named in order to entitle him to the remedy he asks. It seems to us, therefore, in the present case, to be quite immaterial that no person is mentioned by name, since, if the person who has been defamed can be identified by the words used, in such a manner that nobody can have any doubt in fact that he is meant, an action will lie. Here there can be no doubt who are the persons meant. The defendants meant to attack those who carried on the business of the Coupon Company, of whom the plaintiff was the chief. How then can it be material whether the writer knew his name, or had him personally in his mind? The point seems to have been altogether irrelevant, and, as it is possible that the verdict of the jury went on that ground, we are, we think, bound to grant a new trial. It may be that the verdict went on the ground that the publication of the libel was justifiable under all the circumstances, but it is impossible for us to say whether that was so or not. Where there has been an erroneous direction, which may have been the foundation of the verdict, there is no alternative but to grant a new trial.

For these reasons, we think that the appeal should be allowed and a new trial granted.

Appeal allowed with costs. Rule absolute for a new trial with costs. Costs of the first trial to abide the event.

[1] [1848] EngR 663; 1 H.L.C., 637.

[2] [1825] EngR 42; 4 B. & C., 247.

[3] [1848] EngR 663; 1 H.L.C., 637.

[4] [1848] EngR 663; 1 H.L.C., 637, at p. 663.

[5] [1848] EngR 663; 1 H.L.C., 637, at pp. 663-4.

[6] 8 Q.B., 823.

[7] [1848] EngR 663; 1 H.L.C., 637, at p. 666.

[8] [1848] EngR 663; 1 H.L.C., 637, at p. 667.

High Court of Australia

Godhard v James Inglis & Co Ltd [1904] HCA 37; (1904) 2 CLR 78 (1 December 1904)

HIGH COURT OF AUSTRALIA