Mackay v Bacon [1910] HCA 71; (1910) 11 CLR 530 (14 December 1910)

HIGH COURT OF AUSTRALIA

James Mackay Plaintiff, Appellant; and Walter W. Bacon Defendant, Respondent.

H C of A

On appeal from the Supreme Court of New South Wales.

14 December 1910

Griffith C.J., Barton, O'Connor and Isaacs JJ.

Pilcher K.C. and Mocatta, for the appellant.

Shand K.C. and James, for the respondent, were not called upon.

Griffith C.J.

This was an action for oral defamation uttered at a public meeting convened, according to the circular convening it, by the West Ward Ratepayers Association of the Canterbury Municipality "to protest against the manner in which the Noxious Trades Act was being administered in the Municipality, especially in regard to the carrying on of a knacker boiling down establishment without a licence, despite the protest of the Association." The circular further stated that neither the Canterbury Municipal Council nor the Board of Health would take any steps, although they had been notified that carcases, which had been "condemned with cancer," had been carted on to slaughtering premises from the condemned yard at Flemington Sale Yards. At the meeting the defendant made a speech, and moved a resolution to the effect "that the ratepayers and residents of the Canterbury Municipality in public meeting assembled enter their emphatic protest against the maladministration of the Noxious Trades Act and the Cattle Slaughtering and Diseased Animals and Meat Act by the Canterbury Municipal Council and the Board of Health in the Municipal District of Canterbury, and that a petition be signed for presentation to the Canterbury Council asking the Council to refrain from granting any licences for boiling down in the Canterbury Municipal District." At the opening of the meeting the Chairman had made a speech informing those present of the purpose for which it had been called and read the circular. Correspondence that had passed between the Ratepayers' Association, the Board of Health, and the Canterbury Municipal Council was also read. The respondent then moved the resolution. Two passages in his speech are complained of in the declaration. The first was as follows:—"If this establishment (meaning the plaintiff's establishment) is not breaking the law and regulations, then it will take a very clever lawyer to get him out of it. I do not think there is a shadow of a doubt but that some drastic measures will have to be taken." He then read a regulation under the Cattle Slaughtering Act, which is in the following terms:—"No animals but such as are intended to be dressed for the food of man shall be killed or allowed to enter slaughter house premises, deposited or brought into slaughter house premises, and no diseased animal shall be boiled down on such premises unless its diseased condition shall have first become known after its slaughter and in course of preparing it for the food of man." The second part of the defendant's speech complained of was in these words:—"Now if Mr. Mackay would like it publicly known that some of the meat he is carting on his premises which are public slaughter house premises—the Lord only knows what they are—if he would like it publicly known that diseased carcases are being carted on to his premises we will do our very best to advertise it for him. We did not trust to hearsay evidence. We saw and know. We saw the carcase of a beast there from which a large cancer had been cut and on the strength of that, knowing that, we made it our business to inquire the procedure under which these animals are slaughtered at Flemington." The defendant pleaded not guilty, and as to the second passage he also pleaded truth and that the publication was for the public benefit. It appeared on the evidence that the plaintiff was the licensee of slaughter house premises in the municipal district. By the regulations under the Cattle Slaughtering and Diseased Animals Act (No. 36 of 1902) an applicant for a licence must state the premises upon which the business is to be carried on. The plaintiff described his premises as an area of about 100 acres. I think it may be taken that the inhabitants of the Municipality of Canterbury, which is not a vast territory, had some information as to where the plaintiff's slaughter house was, and what were the premises upon which the business was carried on. The defendant had a verdict, which is now objected to on three grounds. The first is that at the trial evidence was wrongly admitted of the speech made by the Chairman, and of the correspondence read to the meeting before the defendant made his speech. In my opinion the evidence was clearly admissible. It was for the jury to say what the words complained of meant under the circumstances in which they were uttered, and it was impossible for them to know what they meant unless those circumstances were brought before their notice. As the learned Chief Justice said:—"You must know the text before you can properly appreciate the sermon." The learned Chief Justice expressed a doubt as to the admissibility of the Chairman's speech, but I think that it was clearly admissible. If it had been rejected and the plaintiff had had a verdict, the verdict could only have been supported upon the ground that the Chairman's speech was irrelevant.

The next objection taken was with regard to the learned Judge's direction to the jury that the first part of the defendant's speech might be regarded by them as fair comment. The proved facts were that the plaintiff had taken on to the premises of 100 acres the carcases of diseased cattle. It appeared that he had a "fat extraction licence" for works situated on another portion of the 100 acres, but that licence did not authorize him to boil down diseased cattle which had not been slaughtered there. Speaking in reference to these facts the defendant said:—"If this establishment is not breaking the law and regulations, then it will take a very smart lawyer to get him out of it." Surely it was possible for a jury, upon whom the duty lay to determine what the words meant, to say whether that was an assertion that the plaintiff was breaking the law, or an expression of the defendant's opinion that in doing what he admitted he had done in taking diseased carcases there he had broken the law. This was for the jury to decide, and the learned Judge properly told them so. The third objection was with regard to the plea of truth. The facts were as I have stated them. It was proved that the plaintiff had taken diseased carcases on to his licensed premises. The whole point made for the plaintiff on this part of the case was that the audience might have thought the statement that the plaintiff took diseased carcases on to his licensed slaughter house premises meant that he took them into his killing house. But it was for the jury to say whether the words conveyed that meaning. The jury apparently thought they did not. Personally, I should have come to the same conclusion. The audience, no doubt residents of the district, perfectly understood what was the subject of discussion. The sole question was what did the defendant mean by the words he used? If they bore one meaning the verdict was obviously right. In my opinion the case was one in which, as Mr. Pilcher admitted, the matter possessed so much of public interest that the defendant was justified in making comment upon it, provided that he did not do so maliciously, and provided that the comment was fair and fairly relevant to the subject matter. So far from the verdict being against the evidence, I think that anyone who reads the evidence would be surprised if the verdict had been different. The argument for the appellant is entirely fallacious. In my opinion the appeal should be dismissed with costs.

Barton, O'Connor and Isaacs JJ.

concurred.

Appeal dismissed.

Solicitor, for appellant, E. R. M. Newton.

Solicitor, for respondent, J. J. McDonald.