Wilkinson v S Bennett Ltd [1921] HCA 14; (1921) 29 CLR 283 (18 April 1921)

HIGH COURT OF AUSTRALIA

Wilkinson Plaintiff, Appellant; and S. Bennett Limited Defendant, Respondent.

H C of A

On appeal from the Supreme Court of New South Wales.

18 April 1921

Knox C.J. Gavan Duffy, and Rich JJ.

Hardwick (with him Burdekin), for the appellant.

Alec Thomson K.C. (with him Betts), for the respondent.

The Court delivered the following written judgment:—

April 18

Knox C.J.

Gavan Duffy, and Rich JJ.

This is an appeal from a judgment of the Supreme Court allowing a demurrer to the declaration and ordering judgment to be entered for the defendant. The action was to recover damages for libel, and the declaration and the reasons for the judgment of the Supreme Court are fully set out in the State Reports[1]. It will be seen that the decision was that of a majority of the Court (Cullen C.J. and Wade J.), Ferguson J. dissenting.

The grounds of demurrer were as follows: "(1) that the declaration discloses no cause for action; (2) that the words alleged in the declaration are not in themselves defamatory; (3) that the words alleged in the declaration do not support the innuendo alleged; (4) that the words alleged in the declaration are not a libel on the plaintiff."

The substantial question for our decision is whether in an action of libel a declaration which contains prefatory averments is open to demurrer on the ground that the facts alleged in the prefatory averments do not support the innuendo, and it was on this question alone that the difference of opinion arose in the Supreme Court. Cullen C.J. and Wade J. based their conclusion on this point mainly, if not entirely, on the long established practice of the Supreme Court, evidenced by decided cases, while Ferguson J. thought that the Court should reconsider those authorities, which were in his opinion in conflict with the expressed terms of sec. 72 of the Common Law Procedure Act 1899 (No. 21). These decisions are, of course, not binding on this Court, and it is our duty to determine the matter for ourselves. We agree with Ferguson J. that the meaning of sec. 72 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 by the innuendo are defamatory that is sufficient. It is clear that if the plaintiff takes full advantage of the benefit conferred on him by the section and alleges nothing by way of prefatory averment, no question can arise such as that which the defendant desires to raise in the present case. But it is contended that if the plaintiff chooses to allege by way of prefatory averment facts on which he relies to establish the connection between the words complained of and the innuendo, the Court on a demurrer to the declaration can determine whether these facts, which for the purpose of the demurrer are taken as true, are sufficient to support the innuendo. Mr. Thomson argued that although a plaintiff need not now allege facts to show how the words complained of had the meaning attached to them by the innuendo, still if he chose to allege any such facts he would not be allowed to give in evidence at the trial any facts not covered by these allegations. It followed, he said, that the Court on the hearing of a demurrer was in as good a position to determine whether the allegations could support the innuendo as the Judge at the trial would be to determine whether the facts proved could support the innuendo, no fact being provable at the trial which was outside the allegations in the declaration. It is difficult to see why the fact that a plaintiff alleges in his declaration certain facts by way of prefatory averment should make insufficient a declaration which, if those facts had not been alleged, would by virtue of the provisions of sec. 72 be sufficient. No authority was cited for the proposition, but Mr. Thomson sought to support it by arguing that on the true construction of sec. 72 the provision that where the words or matter set forth, with or without the alleged meaning, show a cause of action the declaration shall be sufficient, in terms applies only in cases in which the declaration contains no prefatory averment to show how such words or matter were used in a defamatory sense. In order to read the section in this way, it would be necessary to insert in the section some words to qualify or restrict the application of the last sentence in it, which on the plain meaning of the words used is applicable to every action of libel or slander. The words as they stand being plain and intelligible, there is no warrant for reading them otherwise than in their ordinary sense or for adding other words for the purpose of altering the meaning of the section.

We have not been referred to any case decided in England since the passing of the Common Law Procedure Act which affords any support to the decision of the Supreme Court in Thurston v. Hatley[2]. All the subsequent decisions in New South Wales rest on the authority of that case, the decision in which was in our opinion in direct contradiction to the provisions of sec. 72 of the Act. The learned Judges in that case decided expressly and necessarily that where the words complained of were not in themselves defamatory, a declaration which did not contain averments of facts showing that they had a defamatory meaning was demurrable, although the Act says that in an action (meaning in all actions) of libel and slander such a declaration shall be sufficient. The authority of that case was shaken by the observations of Faucett J. and Manning J. in Somers v. Fairfax[3], and we think the decision should now be definitely overruled. The decision in the subsequent case of Nicholls v. Australian Newspaper Co.[4] was based on that in Thurston v. Hatley, and goes with it. The observations of Lord Campbell C.J. in Hemmings v. Gasson[5] are inconsistent with the view taken by the Supreme Court in those cases.

It was next contended that even if the plaintiff was not confined to his prefatory averment the words complained of could not possibly have the meaning assigned to them by the innuendo, and that therefore the declaration disclosed no cause of action. As the case will go for trial we think it desirable to say no more than that a jury might, in our opinion, on evidence submitted to them reasonably hold the innuendo proved.

In our opinion sec. 72 of the Act applies to the present case, and the declaration being sufficient by virtue of that section, the appeal should be allowed and judgment entered for the plaintiff on the demurrer.

Appeal allowed. Judgment of the Supreme Court set aside. Judgment entered for plaintiff on demurrer. Respondent to pay costs of appeal.

Solicitors for the appellant, J. W. Maund & Christie.

Solicitors for the respondent, Pigott & Stinson.

[1] 20 S.R. (N.S.W.), 689.

[2] 10 S.C.R. (N.S.W.), 173.

[3] 2 S.C.R. (N.S.W.) (N.S.), 140.

[4] 17 N.S.W.L.R., 27.

[5] E. B. & E., 346.