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High Court of Australia |
H C of A
On appeal from Starke J.
14 June 1928
Starke J.
Cleland K.C. and Wilson, for the plaintiff.
Owen Dixon K.C. and Walker, for the defendants.
June 4
Starke J
. delivered the following written judgment:—The plaintiff, Thomas Henry Webb, has brought an action for libel against the defendants, Mark Bloch, Joseph Cleveland Pratt, F. V. Murphy and H. S. Crocker, based upon the issue of a circular in the year 1926. An outline of the events preceding the issue of this circular is necessary for the proper understanding of the case. In 1915-1917 the Parliament of South Australia enacted the Wheat Harvest Acts. Substantially they provided that every owner of wheat who desired to do so might deliver his wheat to the Government for sale on his behalf; the Government was authorized to sell the wheat at the best price obtainable, and the net proceeds of all wheat sold by the Government under the Act were to be divided among the wheat-owners concerned in proportion to the amount of wheat delivered by them respectively for sale. Scrip was issued by the Government to the owner of the wheat who delivered wheat under the scheme. Apparently the scrip so issued was largely bought and sold in Australia and treated as if it were negotiable. Of the wheat so delivered to the Government large quantities were destroyed or damaged by mice or exposure to the weather. Evidently this destruction and damage was attributed by many persons to carelessness on the part of the Government, its agents, officers and servants in keeping and protecting the wheat. A committee was formed in South Australia, and one also in Victoria for the purpose of obtaining compensation from the Government. The plaintiff was for long a member of the South Australian Committee, and, perhaps, its leading spirit. The defendants are members of the Victorian Committee. Considerable funds were collected; in South Australia mainly from the growers of wheat who had delivered wheat to the Government, in Victoria mainly from the purchasers of wheat scrip in the market. Legal proceedings were taken to establish the liability of the Government, and ultimately it was established in the Privy Council that "the Government, having undertaken to receive, handle, and market the wheat of all the owners concerned and to pay them a price dependent on the due handling and sale of all the wheat received, must be regarded as the mandatary of all the owners and bound by the ordinary obligation of reasonable care" ; and their Lordships saw no reason "why this obligation should not extend to the handling and marketing (including the storage) of all the wheat dealt with by the Government, so as to be enforceable by each owner interested in the total sales" (Welden v. Smith[1] ). So soon as this decision was given further proceedings were commenced mainly for the purpose of obtaining discovery in aid of the main proceeding— Welden v. Smith — in which discovery could not be obtained. An order for discovery was obtained, but the Government ultimately claimed immunity from discovery in respect of many documents on the ground that their discovery would be prejudicial to the public interests (Griffin v. South Australia[2] ). The protracted legal proceedings and heavy costs filled the South Australian Committee, not unnaturally, with alarm, and it saw no reasonable hope, with the funds at its disposal, of pushing the proceedings to a final judgment. Anxious consideration was given for many months by both the South Australian and the Victorian Committees as to the conduct of the proceedings and to the financial arrangements for that purpose. Moreover, the plaintiff Webb and other members of the South Australian Committee were under personal liability for the costs of the action and had given guarantees as to costs in various proceedings. On 12th June 1925 the plaintiff Webb and others withdrew as from that date a guarantee in the Griffin action; and that announcement was accentuated in October 1925, when the South Australian Committee notified the solicitors conducting proceedings that they refused further personal responsibility for the costs of any proceedings. Arrangements had almost been completed for the Victorian Committee to take over further financial responsibility for the conduct of proceedings, but three events, I think, operated to prevent such completion: the first was the refusal of Welden, instigated, I think, by the plaintiff Webb, to give any irrevocable authority to the solicitors acting for the Committees to continue the proceedings in his name unless he was fully protected, the second was the death of a most influential member of the Victorian Committee (Mr. John Sloan); and the third, the then almost certain failure of the proceedings to obtain discovery in respect of which the Government claimed immunity (see Griffin v. South Australia[3] ). At all events, on 20th October 1925 the South Australian Committee resolved to approach the Government to make terms as to costs for the abandonment of the litigation in connection with the 1916-1917 Wheat Pool, unless (a) the Melbourne Committee or some of its subscribers were prepared to take over all liabilities as to Griffin's and Welden's costs, provided that (b) the South Australian Wheat Compensation Committee transferred to a trust account at the disposal of the Melbourne Committee the whole of the funds covering twenty-one £100 six per cent bonds and costs from the High Court (about £250), and also (c) that a fourth appeal be made to the South Australian subscribers who still held their scrip for further funds with which to continue the action, and in that event (d) this Committee would then retire and leave the future conduct of the case in the hands of the Melbourne Committee or their nominees.
Events now moved rapidly. The Attorney-General of South Australia was sounded, and apparently he was prepared to allow the Committee to abandon both actions without costs. Some negotiations took place with the Melbourne Committee for carrying on the proceedings. The South Australian Committee, however, heard that Government officers were inquiring into Welden's financial position. This led them to fear that the Attorney-General might recede from the concession made to the Committee. On 8th December 1925 the South Australian Committee despatched a letter to the Attorney-General in the following terms:—"Following the interview our chairman (Mr. Webb), in company with Mr. E. Anthoney, had with you at Parliament House on Thursday 19th November, when the abandonment of litigation against your Government for compensation for losses suffered by the 1916-1917 Wheat Pool was discussed, we, the undersigned members of the South Australian Wheat Compensation Committee, beg to inform you that we accept the terms agreed upon by you for the abandonment of all such litigation, namely, that the actions Elijah Welden v. George John Smith (nominal defendant for the Government), and Hurtle Griffin v. State of South Australia be struck out without costs to either side. Further, we the undersigned members of the South Australian Wheat Compensation Committee, in consideration of the said actions being struck out without costs to either side, hereby undertake to advise the wheat-growers who subscribed to our fund that we have abandoned all litigation against the Government. We further undertake not to interest ourselves in any other action against the Government in connection with the 1916-1917 Wheat Pool. We would further add that our acceptance of your offer is conditional upon immediate arrangements being made for the actions involved to be formally struck out. Mr. Welden has authorized us to arrange for the abandonment of the action in which he was plaintiff. We understand that Messrs. Wadey, Norman & Waterhouse have already advised your solicitors that the action Griffin v. State of South Australia is to be discontinued. While we regret that so important and legitimate a claim should be abandoned after five and a half years without reaching a decision, we must thank you for your courtesy in meeting our chairman."
Thus came to an end some six years of litigation without the slightest benefit to any of the litigants. The Melbourne Committee, however, was by no means satisfied, and resolved to continue proceedings against the South Australian Government in the name of other plaintiffs, and for that purpose to appeal to the holders of scrip—both growers and purchasers—for support and further funds. This led to the issue of the circular containing the following statements, which the plaintiff says defame him:—"In order to smooth out the difficulties between them one of the members of my Committee, Mr. John Sloan, offered to take over the liabilities of the chairman (Mr. Webb) provided he would resign from the South Australian Committee and set aside £1,600 out of the funds to cover the then liabilities. This offer was refused by Mr. Webb." "About September last, however, the chairman of the South Australian Committee, Mr. Webb, carried a resolution and informed the Victorian Committee that unless they would take over all the liabilities of the South Australian Committee he proposed to discontinue Welden's action. Again an offer was made to relieve him of liability, but he stipulated that his scrip and the scrip of his son-in-law must also be bought at slightly over cost. Mr. Sloan was agreeable to do even this, but Mr. Webb could give no guarantee that Mr. Welden would be willing to proceed with this case, and the negotiations fell through." "Early in December last Mr. Webb approached the Attorney-General—without consulting either his solicitors, the growers, or my Committee—and came to an arrangement regarding the abandonment of the litigation. The arrangement was afterwards confirmed by letter." "But for the action of the chairman of the South Australian Committee, our solicitors say they would have had the case ready for hearing during the first few months of this year. But he would not allow them to proceed to obtain evidence and he opposed their endeavour to get the inspectors' reports at every step." This circular was, I gather, prepared by Mr. W. A. Norman, who had acted as solicitor both for the South Australian and the Victorian Committees throughout the litigation. At all events, the defendant Bloch on 16th February 1926 authorized its issue, and on 22nd February 1926 the defendants Pratt, Murphy and Crocker confirmed the action of Bloch instructing Norman to issue the circular. In my opinion all the defendants are responsible in law for the issue of the circular. Further, in my opinion, the statements complained of are defamatory of the plaintiff. Any man, reading the circular as a whole, would reasonably understand that the plaintiff had acted perversely in abandoning the litigation against the South Australian Government and had forgotten the interests of those he represented.
Now, the defendants have pleaded that the circular was published only to persons who had a common interest with them in the matter referred to in the circular, without malice, under a sense of duty and in the belief that it was true, and therefore under such circumstances as to make the publication privileged. The defendants were members of the Victorian Committee claiming compensation from the South Australian Government in respect of damage to wheat delivered to it under the Wheat Harvest Acts, and they also were holders of scrip issued by the Government in respect of wheat so delivered. The circular I find was published only to persons who had delivered wheat to the Government under the provisions of these Acts and to purchasers of scrip issued in respect of the wheat so delivered. The defendants had clearly, I think, an interest in the subject matter of the communication, and the persons to whom the communication was made had a corresponding interest in connection with the matter, and there is nothing in my opinion in the publication that is not relevant and pertinent to the occasion (Adam v. Ward[4] ). Further, I am satisfied that none of the defendants were guilty of any malice in publishing the circular or in authorizing its publication, and this despite the plea that the defamatory words are true in substance and in fact. They were not actuated by any spite or ill-feeling against the plaintiff, or by any indirect or improper motive. They acted honestly in what they conceived to be their right and duty, and in the belief that the statements in the circular were true.
It is insisted, however, that Norman, who prepared and issued the circular, knew that it was untrue and that he was actuated by malice towards the plaintiff. It is argued that Norman was an agent or servant of the defendants and also a joint tortfeasor with them in the publication of the circular, and that his malice infected the occasion and so destroyed the privilege claimed by the defendants (Citizens' Life Assurance Co. v. Brown[5] ; Smith v. Streatfeild[6] ). It is true that the plaintiff Webb and Norman had used—quite unjustifiably—some harsh expressions about each other. It is true also, I think, that the circular states the facts of the case unfairly so far as Webb is concerned. Norman, however, was obsessed with the view that the abandonment of the litigation was a gross mistake; that Webb instigated the abandonment and placed whatever obstacles he could in the conduct of the litigation. Norman seems to have been quite incapable of understanding the very serious difficulties that faced the South Australian Committee in the conduct of the proceedings both financially and practically. He was not called as a witness in this action, but an attentive perusal of the evidence has not satisfied me that he was guilty of malice in writing or in issuing the circular. I think he believed that the statements in the circular detrimental to Webb were true. The statement I have had most doubt about is this: "Again an offer was made to relieve him of liability, but he" (Webb) "stipulated that his scrip and the scrip of his son-in-law must also be bought at slightly over cost." On the evidence as it stands, Norman was anxious that the South Australian Committee should be rid of Webb and he suggested that an arrangement might be made to take over Webb's scrip if that would induce him to resign. Webb ultimately intimated that he was willing to accept £300 for scrip held on joint account with his son-in-law Brennan, and thereupon to resign on being satisfactorily indemnified. The price surprised and disgusted Norman, who characterized it much too strongly in a letter to a member of the Victorian Committee. I think this sentence of the circular is unfair and even untrue, but that Norman knew and believed it to be untrue is another matter. I think it possible that the statement would have been modified if Norman had known that Webb and Brennan also held scrip on separate account which they did not even bring under the notice of the Victorian Committee. As already stated, Norman believed that Webb was unnecessarily hindering the litigation and proceedings which he (Norman) thought necessary, and the price suggested for taking over the joint account scrip was, in his view, merely in line with the rest of Webb's actions. Mr. Norman took, I think, too strong a view of the situation and did not allow sufficiently for the difficulties and responsibilities facing the South Australian Committee, but that he acted maliciously or with any indirect motive in issuing the circular is not proved to my satisfaction.
A somewhat interesting question of law would arise if Norman had been actuated by malice in the preparation and issue of the circular. No doubt a person is liable for defamatory matter published by his agents within the scope and in the course of their employment (Citizens' Life Assurance Co. v. Brown[7] ). In this case Norman's only authority was to issue the particular circular approved by the defendants: he had no general or discretionary authority. Again, it has been held that if malice be proved against the defendant who is the author of the defamatory statement, the defence of privilege is not available for any co-defendant concerned in the publication (Smith v. Streatfeild[8] ; Pollock on Torts, 11th ed., p. 269). In this case I do not regard Norman as the author of the circular but rather as the amanuensis of the defendants. Finally, in Adam v. Ward[9] it is said: "When an agent, in obedience to the command of his principal, merely does the mechanical act of publishing the libel handed to him complete the privilege of the principal becomes, as it were, his privilege, and if the principal has caused the communication to be made to protect the interest or discharge the duty which would have made the occasion privileged if he had published the libel with his own hand, the agent can equally rely on the publication having been made on a privileged occasion," [10] [11] . The issue of the circular by Norman was not merely a mechanical act: he drew up the circular and submitted it in substance for the approval of the defendants, who believed it to be true and necessary in the common interest of those concerned in the Wheat Harvest Scheme. No doubt it is obiter, but it may be advantageous for the parties to know that, despite Smith's Case[12] , my opinion is that the malice of Norman would not have destroyed the privilege of the defendants who were not guilty of malice. They merely authorized the publication by Norman of a specific circular which they honestly believed to be true and necessary for the common interest of scrip-holders in the Harvest Scheme. It was their privilege to publish the circular and any improper motive on Norman's part unknown to the defendants would not, in my opinion, have infected the occasion and destroyed their privilege.
The defendants have also pleaded that the words complained of in the circular are true in substance and in fact. In my opinion this plea has not been proved. The circular distorts the facts and gives them a colour decidedly unfair to the plaintiff. A critical examination of all the facts is unnecessary, but it was not right in point of fact to state, in substance, that the plaintiff had perversely obstructed litigation and forgotten the interests of those whom he represented—an interpretation of the words complained of which was open to reasonable people.
The action must be dismissed and with the usual consequences.
From this judgment the plaintiff now appealed to the Full Court.
Appeal allowed. Judgment for the defendants set aside and judgment entered for the plaintiff for £500 damages with costs of the action (including the additional costs reasonably incurred by the plaintiff by reason of the trial of the action in Melbourne instead of in Adelaide) and of the appeal.
Solicitors for the appellant, Genders, Wilson & Pellew.
Solicitors for the respondents, Cook & McCallum; Pavey, Wilson & Cohen.
H C of A
On appeal from Starke J.
5 November 1928
Knox C.J., Isaacs and Gavan Duffy JJ.
Cleland K.C. and Wilson, for the plaintiff.
Owen Dixon K.C. and Walker, for the defendants.
June 4
Starke J
. delivered the following written judgment:—The plaintiff, Thomas Henry Webb, has brought an action for libel against the defendants, Mark Bloch, Joseph Cleveland Pratt, F. V. Murphy and H. S. Crocker, based upon the issue of a circular in the year 1926. An outline of the events preceding the issue of this circular is necessary for the proper understanding of the case. In 1915-1917 the Parliament of South Australia enacted the Wheat Harvest Acts. Substantially they provided that every owner of wheat who desired to do so might deliver his wheat to the Government for sale on his behalf; the Government was authorized to sell the wheat at the best price obtainable, and the net proceeds of all wheat sold by the Government under the Act were to be divided among the wheat-owners concerned in proportion to the amount of wheat delivered by them respectively for sale. Scrip was issued by the Government to the owner of the wheat who delivered wheat under the scheme. Apparently the scrip so issued was largely bought and sold in Australia and treated as if it were negotiable. Of the wheat so delivered to the Government large quantities were destroyed or damaged by mice or exposure to the weather. Evidently this destruction and damage was attributed by many persons to carelessness on the part of the Government, its agents, officers and servants in keeping and protecting the wheat. A committee was formed in South Australia, and one also in Victoria for the purpose of obtaining compensation from the Government. The plaintiff was for long a member of the South Australian Committee, and, perhaps, its leading spirit. The defendants are members of the Victorian Committee. Considerable funds were collected; in South Australia mainly from the growers of wheat who had delivered wheat to the Government, in Victoria mainly from the purchasers of wheat scrip in the market. Legal proceedings were taken to establish the liability of the Government, and ultimately it was established in the Privy Council that "the Government, having undertaken to receive, handle, and market the wheat of all the owners concerned and to pay them a price dependent on the due handling and sale of all the wheat received, must be regarded as the mandatary of all the owners and bound by the ordinary obligation of reasonable care" ; and their Lordships saw no reason "why this obligation should not extend to the handling and marketing (including the storage) of all the wheat dealt with by the Government, so as to be enforceable by each owner interested in the total sales" (Welden v. Smith[13] ). So soon as this decision was given further proceedings were commenced mainly for the purpose of obtaining discovery in aid of the main proceeding— Welden v. Smith — in which discovery could not be obtained. An order for discovery was obtained, but the Government ultimately claimed immunity from discovery in respect of many documents on the ground that their discovery would be prejudicial to the public interests (Griffin v. South Australia[14] ). The protracted legal proceedings and heavy costs filled the South Australian Committee, not unnaturally, with alarm, and it saw no reasonable hope, with the funds at its disposal, of pushing the proceedings to a final judgment. Anxious consideration was given for many months by both the South Australian and the Victorian Committees as to the conduct of the proceedings and to the financial arrangements for that purpose. Moreover, the plaintiff Webb and other members of the South Australian Committee were under personal liability for the costs of the action and had given guarantees as to costs in various proceedings. On 12th June 1925 the plaintiff Webb and others withdrew as from that date a guarantee in the Griffin action; and that announcement was accentuated in October 1925, when the South Australian Committee notified the solicitors conducting proceedings that they refused further personal responsibility for the costs of any proceedings. Arrangements had almost been completed for the Victorian Committee to take over further financial responsibility for the conduct of proceedings, but three events, I think, operated to prevent such completion: the first was the refusal of Welden, instigated, I think, by the plaintiff Webb, to give any irrevocable authority to the solicitors acting for the Committees to continue the proceedings in his name unless he was fully protected, the second was the death of a most influential member of the Victorian Committee (Mr. John Sloan); and the third, the then almost certain failure of the proceedings to obtain discovery in respect of which the Government claimed immunity (see Griffin v. South Australia[15] ). At all events, on 20th October 1925 the South Australian Committee resolved to approach the Government to make terms as to costs for the abandonment of the litigation in connection with the 1916-1917 Wheat Pool, unless (a) the Melbourne Committee or some of its subscribers were prepared to take over all liabilities as to Griffin's and Welden's costs, provided that (b) the South Australian Wheat Compensation Committee transferred to a trust account at the disposal of the Melbourne Committee the whole of the funds covering twenty-one £100 six per cent bonds and costs from the High Court (about £250), and also (c) that a fourth appeal be made to the South Australian subscribers who still held their scrip for further funds with which to continue the action, and in that event (d) this Committee would then retire and leave the future conduct of the case in the hands of the Melbourne Committee or their nominees.
Events now moved rapidly. The Attorney-General of South Australia was sounded, and apparently he was prepared to allow the Committee to abandon both actions without costs. Some negotiations took place with the Melbourne Committee for carrying on the proceedings. The South Australian Committee, however, heard that Government officers were inquiring into Welden's financial position. This led them to fear that the Attorney-General might recede from the concession made to the Committee. On 8th December 1925 the South Australian Committee despatched a letter to the Attorney-General in the following terms:—"Following the interview our chairman (Mr. Webb), in company with Mr. E. Anthoney, had with you at Parliament House on Thursday 19th November, when the abandonment of litigation against your Government for compensation for losses suffered by the 1916-1917 Wheat Pool was discussed, we, the undersigned members of the South Australian Wheat Compensation Committee, beg to inform you that we accept the terms agreed upon by you for the abandonment of all such litigation, namely, that the actions Elijah Welden v. George John Smith (nominal defendant for the Government), and Hurtle Griffin v. State of South Australia be struck out without costs to either side. Further, we the undersigned members of the South Australian Wheat Compensation Committee, in consideration of the said actions being struck out without costs to either side, hereby undertake to advise the wheat-growers who subscribed to our fund that we have abandoned all litigation against the Government. We further undertake not to interest ourselves in any other action against the Government in connection with the 1916-1917 Wheat Pool. We would further add that our acceptance of your offer is conditional upon immediate arrangements being made for the actions involved to be formally struck out. Mr. Welden has authorized us to arrange for the abandonment of the action in which he was plaintiff. We understand that Messrs. Wadey, Norman & Waterhouse have already advised your solicitors that the action Griffin v. State of South Australia is to be discontinued. While we regret that so important and legitimate a claim should be abandoned after five and a half years without reaching a decision, we must thank you for your courtesy in meeting our chairman."
Thus came to an end some six years of litigation without the slightest benefit to any of the litigants. The Melbourne Committee, however, was by no means satisfied, and resolved to continue proceedings against the South Australian Government in the name of other plaintiffs, and for that purpose to appeal to the holders of scrip—both growers and purchasers—for support and further funds. This led to the issue of the circular containing the following statements, which the plaintiff says defame him:—"In order to smooth out the difficulties between them one of the members of my Committee, Mr. John Sloan, offered to take over the liabilities of the chairman (Mr. Webb) provided he would resign from the South Australian Committee and set aside £1,600 out of the funds to cover the then liabilities. This offer was refused by Mr. Webb." "About September last, however, the chairman of the South Australian Committee, Mr. Webb, carried a resolution and informed the Victorian Committee that unless they would take over all the liabilities of the South Australian Committee he proposed to discontinue Welden's action. Again an offer was made to relieve him of liability, but he stipulated that his scrip and the scrip of his son-in-law must also be bought at slightly over cost. Mr. Sloan was agreeable to do even this, but Mr. Webb could give no guarantee that Mr. Welden would be willing to proceed with this case, and the negotiations fell through." "Early in December last Mr. Webb approached the Attorney-General—without consulting either his solicitors, the growers, or my Committee—and came to an arrangement regarding the abandonment of the litigation. The arrangement was afterwards confirmed by letter." "But for the action of the chairman of the South Australian Committee, our solicitors say they would have had the case ready for hearing during the first few months of this year. But he would not allow them to proceed to obtain evidence and he opposed their endeavour to get the inspectors' reports at every step." This circular was, I gather, prepared by Mr. W. A. Norman, who had acted as solicitor both for the South Australian and the Victorian Committees throughout the litigation. At all events, the defendant Bloch on 16th February 1926 authorized its issue, and on 22nd February 1926 the defendants Pratt, Murphy and Crocker confirmed the action of Bloch instructing Norman to issue the circular. In my opinion all the defendants are responsible in law for the issue of the circular. Further, in my opinion, the statements complained of are defamatory of the plaintiff. Any man, reading the circular as a whole, would reasonably understand that the plaintiff had acted perversely in abandoning the litigation against the South Australian Government and had forgotten the interests of those he represented.
Now, the defendants have pleaded that the circular was published only to persons who had a common interest with them in the matter referred to in the circular, without malice, under a sense of duty and in the belief that it was true, and therefore under such circumstances as to make the publication privileged. The defendants were members of the Victorian Committee claiming compensation from the South Australian Government in respect of damage to wheat delivered to it under the Wheat Harvest Acts, and they also were holders of scrip issued by the Government in respect of wheat so delivered. The circular I find was published only to persons who had delivered wheat to the Government under the provisions of these Acts and to purchasers of scrip issued in respect of the wheat so delivered. The defendants had clearly, I think, an interest in the subject matter of the communication, and the persons to whom the communication was made had a corresponding interest in connection with the matter, and there is nothing in my opinion in the publication that is not relevant and pertinent to the occasion (Adam v. Ward[16] ). Further, I am satisfied that none of the defendants were guilty of any malice in publishing the circular or in authorizing its publication, and this despite the plea that the defamatory words are true in substance and in fact. They were not actuated by any spite or ill-feeling against the plaintiff, or by any indirect or improper motive. They acted honestly in what they conceived to be their right and duty, and in the belief that the statements in the circular were true.
It is insisted, however, that Norman, who prepared and issued the circular, knew that it was untrue and that he was actuated by malice towards the plaintiff. It is argued that Norman was an agent or servant of the defendants and also a joint tortfeasor with them in the publication of the circular, and that his malice infected the occasion and so destroyed the privilege claimed by the defendants (Citizens' Life Assurance Co. v. Brown[17] ; Smith v. Streatfeild[18] ). It is true that the plaintiff Webb and Norman had used—quite unjustifiably—some harsh expressions about each other. It is true also, I think, that the circular states the facts of the case unfairly so far as Webb is concerned. Norman, however, was obsessed with the view that the abandonment of the litigation was a gross mistake; that Webb instigated the abandonment and placed whatever obstacles he could in the conduct of the litigation. Norman seems to have been quite incapable of understanding the very serious difficulties that faced the South Australian Committee in the conduct of the proceedings both financially and practically. He was not called as a witness in this action, but an attentive perusal of the evidence has not satisfied me that he was guilty of malice in writing or in issuing the circular. I think he believed that the statements in the circular detrimental to Webb were true. The statement I have had most doubt about is this: "Again an offer was made to relieve him of liability, but he" (Webb) "stipulated that his scrip and the scrip of his son-in-law must also be bought at slightly over cost." On the evidence as it stands, Norman was anxious that the South Australian Committee should be rid of Webb and he suggested that an arrangement might be made to take over Webb's scrip if that would induce him to resign. Webb ultimately intimated that he was willing to accept £300 for scrip held on joint account with his son-in-law Brennan, and thereupon to resign on being satisfactorily indemnified. The price surprised and disgusted Norman, who characterized it much too strongly in a letter to a member of the Victorian Committee. I think this sentence of the circular is unfair and even untrue, but that Norman knew and believed it to be untrue is another matter. I think it possible that the statement would have been modified if Norman had known that Webb and Brennan also held scrip on separate account which they did not even bring under the notice of the Victorian Committee. As already stated, Norman believed that Webb was unnecessarily hindering the litigation and proceedings which he (Norman) thought necessary, and the price suggested for taking over the joint account scrip was, in his view, merely in line with the rest of Webb's actions. Mr. Norman took, I think, too strong a view of the situation and did not allow sufficiently for the difficulties and responsibilities facing the South Australian Committee, but that he acted maliciously or with any indirect motive in issuing the circular is not proved to my satisfaction.
A somewhat interesting question of law would arise if Norman had been actuated by malice in the preparation and issue of the circular. No doubt a person is liable for defamatory matter published by his agents within the scope and in the course of their employment (Citizens' Life Assurance Co. v. Brown[19] ). In this case Norman's only authority was to issue the particular circular approved by the defendants: he had no general or discretionary authority. Again, it has been held that if malice be proved against the defendant who is the author of the defamatory statement, the defence of privilege is not available for any co-defendant concerned in the publication (Smith v. Streatfeild[20] ; Pollock on Torts, 11th ed., p. 269). In this case I do not regard Norman as the author of the circular but rather as the amanuensis of the defendants. Finally, in Adam v. Ward[21] it is said: "When an agent, in obedience to the command of his principal, merely does the mechanical act of publishing the libel handed to him complete the privilege of the principal becomes, as it were, his privilege, and if the principal has caused the communication to be made to protect the interest or discharge the duty which would have made the occasion privileged if he had published the libel with his own hand, the agent can equally rely on the publication having been made on a privileged occasion," [22] [23] . The issue of the circular by Norman was not merely a mechanical act: he drew up the circular and submitted it in substance for the approval of the defendants, who believed it to be true and necessary in the common interest of those concerned in the Wheat Harvest Scheme. No doubt it is obiter, but it may be advantageous for the parties to know that, despite Smith's Case[24] , my opinion is that the malice of Norman would not have destroyed the privilege of the defendants who were not guilty of malice. They merely authorized the publication by Norman of a specific circular which they honestly believed to be true and necessary for the common interest of scrip-holders in the Harvest Scheme. It was their privilege to publish the circular and any improper motive on Norman's part unknown to the defendants would not, in my opinion, have infected the occasion and destroyed their privilege.
The defendants have also pleaded that the words complained of in the circular are true in substance and in fact. In my opinion this plea has not been proved. The circular distorts the facts and gives them a colour decidedly unfair to the plaintiff. A critical examination of all the facts is unnecessary, but it was not right in point of fact to state, in substance, that the plaintiff had perversely obstructed litigation and forgotten the interests of those whom he represented—an interpretation of the words complained of which was open to reasonable people.
The action must be dismissed and with the usual consequences.
From this judgment the plaintiff now appealed to the Full Court.
Appeal allowed. Judgment for the defendants set aside and judgment entered for the plaintiff for £500 damages with costs of the action (including the additional costs reasonably incurred by the plaintiff by reason of the trial of the action in Melbourne instead of in Adelaide) and of the appeal.
Solicitors for the appellant, Genders, Wilson & Pellew.
Solicitors for the respondents, Cook & McCallum; Pavey, Wilson & Cohen.
1. (1924) A.C. 484, at p. 493; [1924] UKPCHCA 1; 34 C.L.R. 29, at pp. 35-36.
2. [1924] HCA 40; (1924) 35 C.L.R. 200; (1925) 36 C.L.R. 378.
3. [1925] HCA 39; (1925) 36 C.L.R. 378.
13. (1924) A.C. 484, at p. 493; [1924] UKPCHCA 1; 34 C.L.R. 29, at pp. 35-36.
14. [1924] HCA 40; (1924) 35 C.L.R. 200; (1925) 36 C.L.R. 378.
15. [1925] HCA 39; (1925) 36 C.L.R. 378.
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