Penton v Calwell [1945] HCA 51; (1945) 70 CLR 219 (8 August 1945)

HIGH COURT OF AUSTRALIA

H C of A

2 May 1945

Dixon J.

Barry K.C. and Stanley Lewis, for the plaintiff.

Shand K.C. and Ashburner, for the defendant.

May 2

Dixon J

. delivered the following written judgment:—

By a summons dated 29th March, the plaintiff applied for an order striking out two paragraphs of the defence, together with the particulars thereunder. The action is one of libel, and is based upon the publication, in the Daily Telegraph newspaper, of which the defendant is editor, of an article charging the plaintiff with falsehood and challenging him to sue the newspaper. The issue containing the words complained of is dated 25th November 1944. One of the paragraphs which it is sought to strike out contains a plea of justification; the other a plea of privilege. The application was supported by an attack upon the particulars independently of the pleas, as well as upon both together. The plea of justification is in the bald form, alleging that the words sued upon are true in substance and in fact.

Having regard to the construction which the defendant gives to the libel, namely, a general charge of mendacity, the plaintiff contends that the paragraph containing the plea of justification should itself set out the specific matters relied upon to justify the general charge of untruthfulness. Reliance is placed upon Zierenberg v. Labouchere[1] ; also upon considerations set out in Bullen and Leake, 3rd ed. (1868), pp. 724, 725.

As a matter of artistic pleading, I think the plaintiff's view should be commended. But I do not think that the considerations upon which he relies are sufficient to authorize me to strike out the paragraph, as distinguished from insisting that it is supported by proper particulars.

The particulars delivered under the plea of justification contain a considerable number of statements imputed to the plaintiff which, for one reason or another, are said to be untrue. In the form in which the particulars were first delivered, the statements attributed to the plaintiff were somewhat more extensively set out and no attempt was made to state wherein they were alleged to be untrue. I adjourned the summons to enable the defendant to amend his particulars and his pleadings to meet the more obvious criticisms to which his averments, both in respect of justification and privilege, were open. An amended defence and particulars were accordingly delivered, and it is with them that I am dealing.

Under the amended particulars of justification, the defendant now picks out some specific parts of the statements ascribed to the plaintiff, and says with more particularity wherein they were contrary to fact, and alleges in each case that the statements were made by the plaintiff knowing them to be untrue, or without honest belief in their truth. The instances, however, cover a period of time extending from November 1941 to the date of publication of the libel three years later, and cover a great number of independent matters. As the defendant construes the libel, it may be necessary for him to establish that the plaintiff is an habitually untruthful person. The plaintiff himself, however, has, by his counsel, contended before me upon the present summons that this is not the true meaning of the libel set out in the statement of claim which, according to his construction, contains a charge of untruthfulness on a specific occasion and in relation to a specific matter.

The first question for my determination is, therefore, whether the defendant's construction may be placed upon the libel. The plaintiff has not set out the whole of the newspaper article in his statement of claim, but has limited his complaint by omitting certain of its paragraphs. The question, therefore, is the meaning of the words complained of rather than of the whole of the article published. In ascertaining that meaning, however, the whole of the publication must be looked at, so that the words complained of may be understood in their context. It is not for the judge, even at the trial, to decide what is the actual meaning of the libel. His function is to decide whether the jury may fairly place upon the words complained of the meaning or meanings relied upon by the respective parties.

In other words, he decides of what meanings the libel is capable—if it is capable of more than one. In the present case, the article is headed "Calwell can sue on this." It then begins by a statement that the plaintiff is smarting under a reminder of a former instance when it is alleged he tried to suppress the newspapers and that he again lashed out at the press on the day before the publication. It proceeds to make a purported quotation from some utterances of the plaintiff to the effect that Sydney newspaper proprietors were imperilling prisoners of war in Japanese hands, as well as the interest of the country.

This last paragraph or quotation is included in the words complained of, which then set out the ensuing part of the article as follows:—"The purpose of his speech was to suggest that the Daily Telegraph had defied a censorship instruction in reporting the escape of Japanese prisoners at Cowra. "Mr. Packer (managing director of Consolidated Press) was threatened that if he did anything to jeopardise Australian prisoners of war he would be dealt with," said Mr. Calwell. The fact is that the Daily Telegraph did not publish anything the censor asked it not to publish. It submitted its copy in the ordinary way and completely obeyed censor's instructions. In doing so it yielded to no threats from Mr. Calwell. His attempt to suggest otherwise is a lie."

The article then continues with a sentence which is not included in the statement of claim—"Unfortunately his lies are always spoken under the privilege of Parliament, where he is protected from the law." Then follow words which are included in the statement of claim; "Some time ago we libelled Mr. Calwell deliberately. We do so again by saying that he is maliciously and corruptly untruthful; in other words a dishonest, calculating liar." That ends the words complained of, but the article goes on to invite the plaintiff to take action against the newspaper, and it deals with that prospect.

It is clear enough that the words complained of do contain a specific charge of untruthfulness in relation to the question of censorship with reference to the escape of Japanese prisoners at Cowra. But, in my opinion, the words complained of are capable of a further meaning, namely, a meaning that charges the plaintiff with more frequent, or even habitual, mendacity. Whether the words bear that meaning is a matter for the jury. If the jury give that meaning to them, a plea of justification would not be made out except by proof of the truth of the words in that sense. I think that the reference to a previous deliberate libel upon the plaintiff and the paragraph, not included in the statement of claim, referring to lies spoken under the privilege of parliament are enough to enable a jury to say that a general charge of untruthfulness is contained in the words "We do so again by saying" &c.

It is unnecessary for me to discuss whether the plaintiff can, as a matter of pleading or otherwise, take any steps to limit the construction that may be given to the libel so that it does not extend beyond the one occasion. For the plaintiff has not attempted to take any formal steps to that end, if any are open to him; what has happened is that his counsel as a matter of argument has advanced the contention that the words he has sued upon are not fairly open to the wider construction.

It does not, however, follow that all the particulars of justification which the defendant has filed can be sustained. To make out a plea of justification it is necessary for the defendant to prove the truth of the statement that the plaintiff is "maliciously and corruptly untruthful; in other words a dishonest, calculating liar." Simple departures from fact appear hardly to be enough.

Among the twenty-one paragraphs of the particulars given under the plea of justification, there are not a few containing expressions by the plaintiff of matters of opinion, inference, comment or criticism. The statements of this kind attributed to him, however extreme may be the form they assume, cannot be treated in the same way as statements of physical events or occurrences. To base a charge of falsehood upon them it is, in effect, necessary to allege and prove either that when he expressed them he disbelieved in the opinions, inferences, comments or criticisms he was professing, or that, in spite of the form of his statements, he really meant to convey a more objective meaning that was false.

Having regard to the very strong and definite character of the charge of lying made in the libel, it is open to doubt, at all events in the case of some of the statements of this nature ascribed by the particulars to the plaintiff, whether, by either process mentioned, they can be successfully relied upon as a justification. But, however this may be, the particulars deal with what may be called expressions of comment or criticism in a way which I think is misconceived and cannot be allowed to stand.

They allege that, on the proper construction of the given statement, it had a meaning which is then set out, that upon such construction it is untrue and the plaintiff made it knowing it to be untrue or without honest belief in its truth.

When a charge of dishonest statement is based upon the views expressed by the man against whom the charge is made, the question is what he himself meant to convey by the words he used and whether he disbelieved in the views he so intended to convey. The pleader seeks to fix a construction upon the words uttered independently of and without reference to what the plaintiff himself intended by the alleged utterance and to make the falsity of the meaning so attributed to it the basis of the charge of dishonesty, and to do so by alleging that he knew the contrary of the meaning or had no positive belief. This, I think, is wrong. Further, some of the constructions so placed upon the words attributed to the plaintiff seem more than dubious.

Another difficulty is that, in some cases, specific passages have been relied upon as definitely false in expression and, at the same time, either of themselves or as part of a larger whole, they have been used as bearing a further or secondary meaning alleged to be untrue and one which the plaintiff knew to be untrue or had no belief in.

This appears to me to make still more embarrassing particulars which, in any case, I am not prepared to allow to stand in their present form. If par. 3 of the particulars under the plea of justification is referred to, it will provide an example of what I have said. Sub-paragraph (f) fixes a construction on what, by sub-par. (a), the plaintiff is alleged to have said and then avers that upon such construction it is untrue, and so on. It seems to me, moreover, that the construction expressed by the words "from motives of pecuniary gain" is not likely to be accepted as an accurate version of a statement which appears to be dealing rather with necessitousness. Then sub-par. (b) alleges the falsity of, in effect, an opinion expressed about what may be thought to be an economic matter, although no doubt an opinion which the defendant would say was so extreme as to warrant the charge he makes. Again, though it is a small point, in sub-par. (d) the word "many" goes somewhat beyond the text set out in sub-par. (a).

It would be possible to go through the various paragraphs which are subject to the objections I have stated, and which are illustrated to some extent by par. 3, and to pick out the portions which can be supported, and strike out the rest. But as I propose in any case to give the defendant leave to amend, and as I think that, in the interests of the defendant's own case, some careful reconsideration of the materials which the pleader has used and of the manner in which he has used them is desirable, I shall strike out the whole of each paragraph affected or infected.

The paragraphs involved are numbers 3, 5, 6 (an example of interrogative statements of a specific kind mixed up with meanings by construction), 7, 8, 9, 10, 11, 12 (where, however, the words "upon its proper construction" hardly add anything), 13, 14, 16, 19, 20 and 21. Paragraph 15 alleges the making of the statement which provoked the actual libel, though it is placed out of chronological order. It is of course cardinal to the plea of justification. But in some of the particulars of falsity the same formula fixing constructions on the text is employed. I shall strike out the sub-paragraphs containing allegations of meanings by construction said to be false, viz. sub-pars. (b), (c), (f), (g), (h), (i) and (j).

Counsel for the plaintiff contended that even if the meaning of the words complained of was not necessarily limited to untruthfulness on the specific occasion yet the charge of more general untruthfulness, of which I have held it capable, could not extend beyond a charge of lying in statements concerning the defendant, the newspaper, the company and its managing director, Packer. I do not think that a jury would be bound to place even this restriction upon the ambit of the charge.

So far I have not dealt with pars. 1 (a), (b) and (c) of the particulars under the plea of justification contained in the second paragraph of the statement of claim. The sub-paragraphs purport to set out the articles referred to by the words contained in the libel: "Some time ago we libelled Mr. Calwell deliberately." In my opinion, the defendant is not at liberty to do this. To state in the particulars what that alleged former libel was is not a justification of the present libel. Indeed, although a statement that at some former time the defendant libelled the plaintiff may support a defamatory innuendo, I should doubt whether in its natural primary meaning such a statement is itself defamation. At all events, to repeat the former libel in the particulars and to leave it at that cannot be right. I shall therefore strike out par. 1.

The statement of claim alleges that the words complained of were published in Melbourne in the State of Victoria and in other parts of the Commonwealth of Australia. The newspaper is published in Sydney, and its principal circulation is in that city and in New South Wales. Under the law of New South Wales, truth is not a justification unless it would be for the public benefit.

Upon my drawing the attention of counsel to this fact, I was informed by the defendant's counsel that some communication had passed between the parties, resulting in a statement by the plaintiff's solicitors that publication of the words complained of in Victoria was clearly alleged and that the plaintiff's counsel had stated (scil. during the hearing of an application in Chambers) that the publications elsewhere in Australia would be relied on to show that the libel was widely diffused, thus indicating that such publications would be relied on in connection with damages, and that, in view of this, the defendant's plea of justification was drawn in this form, the venue being at present laid in Victoria. Whatever the result of all this may be, it is a matter for the parties themselves, but they ought to be sure that there is no misunderstanding about it.

The plea of privilege is contained in par. 3 of the defence. The defendant admits that he wrote and published the article containing the words complained of. It is therefore as the actual author of the defamatory matter that he must make out his defence of privilege.

The pleading claims privilege on the ground or grounds that the plaintiff had from time to time made statements attacking the defendant both personally and as editor of the newspaper, attacking the company which published the newspaper and attacking Packer, its managing director, and attacking newspapers published in Australia "particularly in respect of their right to publish in accordance with the law matters of public interest," and that the words complained of were published bona fide in defence of, put shortly, these persons and interests and for the purpose of preventing the public from believing the statements to be true.

Particulars of the alleged attacks by the plaintiff were given. They are voluminous and cover a period from December 1940 to the day before the publication of the article. The first paragraph of the particulars sets out statements alleged to have been made by the plaintiff in the House of Representatives at various times in 1940 and 1941 with reference to the press generally. The second, third, fourth and fifth paragraphs ascribe to the plaintiff statements in the House made in May 1942 concerning the defendant. The statements purport to arise out of a proposal that the defendant should go to America on a lecture tour and they contain a number of reflections upon him personally, as a journalist and as editor of the newspaper. The next paragraph (no. 6) sets out an article written by the defendant in response to these attacks and published in the newspaper of 21st May 1942. It includes a counter-attack upon the plaintiff, accuses him of availing himself of the protection of parliamentary privilege to impugn the defendant, the managing director, and others connected with the newspaper, and challenges him either to repeat without that protection what he said in parliament so that the defendant might sue him for defamation, or else, in effect, to take the role of plaintiff himself, and sue the defendant for the defamatory statements concerning him contained in the article giving the challenge.

This article was followed by a statement, set out in the same paragraph of the particulars, made by the plaintiff in Parliament on the same day. The statement deals with the newspaper article, reflects on the defendant, both personally and as editor, and upon the newspaper, and declines the challenge to the plaintiff to expose himself to suit or to sue, giving as a ground that in New South Wales truth is not a defence unless its publication is found to be for the public benefit, and as a further ground, the composition of juries in New South Wales. The particulars then proceed, in par. 7, to set out what the newspaper published by way of response to this statement.

It amounted to a repetition of the challenge and a statement that the plaintiff had nevertheless failed to sue. A few days later the plaintiff is alleged to have referred again to the matter by a question in the House mentioning the defendant specifically. But the following paragraphs of the particulars, viz. nos. 8, 9, 10 and 12, set out complaints on the part of the plaintiff against the press generally. Two of them (no. 9 (a) and no. 10 (c)), however, mention the Daily Telegraph incidentally though dyslogistically. These utterances cover dates from December 1942 to 15th December 1943. Paragraph 12 alleges minor uncomplimentary references to the newspaper.

The last of these led to an article in the Daily Telegraph which, among other things, recounted the challenge to the plaintiff and his failure to sue. This is alleged in par. 14. Paragraph 15 sets out another uncomplimentary reference to the newspaper made by the plaintiff in the House. The date given is 24th February 1944. Paragraph 16 sets out a strong criticism by him on 14th April 1944 of some statement made on behalf of Australian Newspaper Proprietors' Association; and par. 17, some further strongly worded attacks on the press generally, said to be made in April 1944. Paragraph 18 alleges an attack upon the newspaper, made by the plaintiff in the House on 6th September 1944. It had reference to coal-mining.

Finally comes par. 19, setting out the statement made by the plaintiff on 24th November, which formed the actual occasion of the article published on 25th November 1944, the article that forms the subject of the action.

Apart from a more general consideration which, in my opinion, makes the entire plea of privilege inadmissible, a number of objections arise upon these particulars and upon the form of the paragraph pleading the defence of privilege.

In the first place, the paragraph mixes up several grounds for claiming privilege, viz. (1) the defendant's own right to defend his reputation, whether as a man or as a journalist, against public attack, (2) the right of the newspaper proprietor to answer by the hand of the defendant attacks made upon the newspaper, in other words to defend its business interests, a right from which flows a derivative protection for the defendant, (3) the privilege of the defendant to defend his managing director, (4) the right claimed by the defendant to protection in publishing defamatory matter in defence of newspapers published and circulated in the Commonwealth against attacks upon them "particularly in respect of their right to publish in accordance with the law matters of public interest."

The manner in which these heads of alleged privilege are mixed up, both in the pleading and in the particulars, would, I think, prove embarrassing in the circumstances of this case. If the plea stood it would, I think, be necessary to recast it and allege clearly the facts supporting each of the various heads of privilege claimed.

Further, the fourth of these heads is, in my opinion, misconceived. It confuses the defence of qualified privilege with the defence of fair comment and with the circumstances sufficient to found a right of comment or public criticism.

The particulars given in pars. 1 (a) to (g), 8, 10 (a), (b), part of (c) and (d), and 12, allege statements disparaging to the Australian press and attacking the conduct of newspapers generally without specific reference to the Daily Telegraph or the defendant.

No case has yet gone as far as deciding that attacks upon an institution, such as the press, the theatre, or the Bar, or a section of the community create a privileged occasion in each person belonging to or concerned in the institution or the section of the community so that he is enabled in the exercise of a qualified privilege attaching to him personally to publish defamatory matter by way of defence or counter-attack. Doubtless the conduct of the attacker becomes a matter of public interest upon which anyone may comment, and, further, in judging whether the answer is fair and bona fide comment the nature of the attack and the position of the party making the comment should be considered. But in any case, if such a qualified privilege were held to arise from general attacks upon newspapers and their right of free expression, the actual words complained of and the article of which they form part are clearly outside the scope of any occasion that could be created by the attacks set out in the particulars mentioned.

In the next place, the connection is not made out between the article containing the words complained of and many of the other particulars of attacks by the plaintiff on the defendant and the newspaper.

It may be conceded at once that the attack alleged to have been made on 24th November 1944 and set out in the nineteenth paragraph of the particulars would give rise to a privilege to lay before the public an appropriate answer and that on the face of it the words complained of do deal with that attack. But the words or the article in which they occur do not specifically deal with any other attack. There is, however, on the face of the article a reference to what is described as a humiliating defeat suffered by the plaintiff in April 1944 when he tried to suppress the newspapers. There is also a reference to some previous controversy in the words: "Some time ago we libelled Mr. Calwell deliberately." It may be that these references give a foundation upon which, by proper allegations of fact, the defendant might show a connection between the article and earlier attacks by the plaintiff upon him and his newspaper or his managing director, a connection in the light of which the article would be considered an intended exercise of the right of defence to those attacks. But, whether that is possible or not, I think the pleader is not entitled to leave it to be spelt out as a matter of inference from what appears on the face of statements set out in the particulars. Further, in the case of some particulars there is nothing on the face of them to support or suggest the inference.

The paragraphs I have already mentioned, viz., 1 (a) (b) (c) (d) (e) (f) and (g); 8; 10 (a) (b) (c) and (d); 12, fall within the application of the foregoing observations. But they also apply to pars. 2 to 7 and to pars. 9, 10 (c), 11, 12 and 13.

If I had been of opinion that a plea of privilege to the libel in question could be supported, nevertheless, for the reasons I have stated, I should have struck out these particulars and par. 3 of the defence, at the same time giving the defendant leave to amend. But I am of opinion that in the circumstances of the present case a plea of privilege on the grounds indicated by the defence cannot be sustained.

The article containing the words complained of amounts to a charge of lying, framed with every appearance of care and deliberation and expressed with strength, together with a challenge to the plaintiff to bring an action of defamation upon the charge, obviously to the end that the issue of his veracity might be submitted to the courts of justice. The article, which is headed, "Calwell can sue on this," states that it is not the first time the newspaper has called him a liar, proceeds to say that unfortunately his lies are always spoken under the privilege of parliament where he is protected from the law, refers to a previous deliberate libel upon him, makes the charge, invites him to sue, speaks of the damages it should be worth "if the court will give him a verdict," suggests the possibility of his giving them to a charity in his electorate and concludes—"Surely that should be a good incentive to issue a writ at the earliest possible moment. Otherwise we will gladly stand him the cost of a handsome yellow flag."

The defence of qualified privilege means that, in the absence of malice, the existence of which of course the defendant denies, the libel is not actionable, whether the charge it contains be true or untrue. It means that the publication of the defamatory statements is protected and that the question whether they are or are not true is immaterial. When the privilege of the occasion arises from the making by the plaintiff of some public attack upon the reputation or conduct of the defendant or upon some interest which he is entitled to protect, the purpose of the privilege is to enable the defendant on his part freely to submit his answer, whether it be strictly defensive or be by way of counter-attack, to the public to whom the plaintiff has appealed or before whom the plaintiff has attacked the defendant. The privilege is given to him so that he may with impunity bring to the minds of those before whom the attack was made any bona fide answer or retort by way of vindication which appears fairly warranted by the occasion. In Koenig v. Ritchie[2] Cockburn C.J. used the expressions: "Bona fide for the purpose of the" (defendant's) "defence and in order to prevent the charges operating to" (his) "prejudice," expressions which have been taken into the forms of pleading.

The foundation of the privilege is the necessity of allowing the party attacked free scope to place his case before the body whose judgment the attacking party has sought to affect. In this instance, it is assumed to be the entire public. The purpose is to prevent the charges operating to his prejudice. It may be conceded that to impugn the truth of the charges contained in the attack and even the general veracity of the attacker may be a proper exercise of the privilege, if it be commensurate with the occasion. If that is a question submitted to or an argument used before the body to whom the attacker has appealed and it is done bona fide for the purpose of vindication, the law will not allow the liability of the party attacked to depend on the truth or otherwise of defamatory statements he so makes by way of defence.

For both parties have invoked the judgment, not of the courts of law, but of the public or a section of the public or other body. In the present case, however, the defendant has chosen to challenge the plaintiff to come into the courts of law and to submit the charge as an issue for their decision. He has held up before the plaintiff the consequences of his failure to do so. That is not, I think, the kind of defence or vindication that comes within the privilege. It is inconsistent with the very basis and rationale of the protection which the privilege gives. It gives a protection against liability to suit for a statement made in a controversy submitted, so to speak, by the plaintiff himself to another forum.

To make a charge and invite the plaintiff to invoke the judgment of the courts of law is to depart from the course around which protection is thrown. The defendant cannot say in the libel, "This is my charge against you; I make it so that you may submit the issue to the courts and if you refuse the challenge you are branded," and then, when the plaintiff accepts the challenge, set up a privilege which, if well founded, intercepts the issue and defeats the action. Upon principle I think that the form of the libel takes it outside the privilege claimed for the occasion. So far as I can ascertain, the question is not covered by authority.

For these reasons, I strike out par. 3 of the defence and the particulars thereunder.

In the result, the order will be that, of the particulars given under par. 2 of the defence, the following paragraphs are struck out: viz. nos. 1, 3, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 (b), (c), (f), (g), (h), (i), (j), 16, 19, 20 and 21, and par. 3 of the defence and the particulars thereunder. Leave is given to the defendant to file amended particulars under par. 2 of the defence. Amended particulars to be filed within seven days.

The defendant will pay the costs of the application.

Penton appealed to the High Court against the whole of the judgment of Dixon J.

Order varied by striking out the order and direction as to par. 3 of the amended defence and the particulars thereunder and by substituting therefor an order that the defendant be at liberty to amend the said paragraph and particulars and by directing that the amended defence and particulars under pars. 2 and 3 thereof be filed within 21 days from the date of the order. Order otherwise affirmed. No order as to costs of appeal.

Solicitors for the appellant, Dawson, Waldron, Edwards & Nicholls, Sydney, by Blake & Riggall.

Solicitors for the respondent, McKenna & Talbot.

H C of A

8 August 1945

Latham C.J., Rich, Starke, McTiernan and Williams JJ.

Barry K.C. and Stanley Lewis, for the plaintiff.

Shand K.C. and Ashburner, for the defendant.

May 2

Dixon J

. delivered the following written judgment:—

By a summons dated 29th March, the plaintiff applied for an order striking out two paragraphs of the defence, together with the particulars thereunder. The action is one of libel, and is based upon the publication, in the Daily Telegraph newspaper, of which the defendant is editor, of an article charging the plaintiff with falsehood and challenging him to sue the newspaper. The issue containing the words complained of is dated 25th November 1944. One of the paragraphs which it is sought to strike out contains a plea of justification; the other a plea of privilege. The application was supported by an attack upon the particulars independently of the pleas, as well as upon both together. The plea of justification is in the bald form, alleging that the words sued upon are true in substance and in fact.

Having regard to the construction which the defendant gives to the libel, namely, a general charge of mendacity, the plaintiff contends that the paragraph containing the plea of justification should itself set out the specific matters relied upon to justify the general charge of untruthfulness. Reliance is placed upon Zierenberg v. Labouchere[3] ; also upon considerations set out in Bullen and Leake, 3rd ed. (1868), pp. 724, 725.

As a matter of artistic pleading, I think the plaintiff's view should be commended. But I do not think that the considerations upon which he relies are sufficient to authorize me to strike out the paragraph, as distinguished from insisting that it is supported by proper particulars.

The particulars delivered under the plea of justification contain a considerable number of statements imputed to the plaintiff which, for one reason or another, are said to be untrue. In the form in which the particulars were first delivered, the statements attributed to the plaintiff were somewhat more extensively set out and no attempt was made to state wherein they were alleged to be untrue. I adjourned the summons to enable the defendant to amend his particulars and his pleadings to meet the more obvious criticisms to which his averments, both in respect of justification and privilege, were open. An amended defence and particulars were accordingly delivered, and it is with them that I am dealing.

Under the amended particulars of justification, the defendant now picks out some specific parts of the statements ascribed to the plaintiff, and says with more particularity wherein they were contrary to fact, and alleges in each case that the statements were made by the plaintiff knowing them to be untrue, or without honest belief in their truth. The instances, however, cover a period of time extending from November 1941 to the date of publication of the libel three years later, and cover a great number of independent matters. As the defendant construes the libel, it may be necessary for him to establish that the plaintiff is an habitually untruthful person. The plaintiff himself, however, has, by his counsel, contended before me upon the present summons that this is not the true meaning of the libel set out in the statement of claim which, according to his construction, contains a charge of untruthfulness on a specific occasion and in relation to a specific matter.

The first question for my determination is, therefore, whether the defendant's construction may be placed upon the libel. The plaintiff has not set out the whole of the newspaper article in his statement of claim, but has limited his complaint by omitting certain of its paragraphs. The question, therefore, is the meaning of the words complained of rather than of the whole of the article published. In ascertaining that meaning, however, the whole of the publication must be looked at, so that the words complained of may be understood in their context. It is not for the judge, even at the trial, to decide what is the actual meaning of the libel. His function is to decide whether the jury may fairly place upon the words complained of the meaning or meanings relied upon by the respective parties.

In other words, he decides of what meanings the libel is capable—if it is capable of more than one. In the present case, the article is headed "Calwell can sue on this." It then begins by a statement that the plaintiff is smarting under a reminder of a former instance when it is alleged he tried to suppress the newspapers and that he again lashed out at the press on the day before the publication. It proceeds to make a purported quotation from some utterances of the plaintiff to the effect that Sydney newspaper proprietors were imperilling prisoners of war in Japanese hands, as well as the interest of the country.

This last paragraph or quotation is included in the words complained of, which then set out the ensuing part of the article as follows:—"The purpose of his speech was to suggest that the Daily Telegraph had defied a censorship instruction in reporting the escape of Japanese prisoners at Cowra. "Mr. Packer (managing director of Consolidated Press) was threatened that if he did anything to jeopardise Australian prisoners of war he would be dealt with," said Mr. Calwell. The fact is that the Daily Telegraph did not publish anything the censor asked it not to publish. It submitted its copy in the ordinary way and completely obeyed censor's instructions. In doing so it yielded to no threats from Mr. Calwell. His attempt to suggest otherwise is a lie."

The article then continues with a sentence which is not included in the statement of claim—"Unfortunately his lies are always spoken under the privilege of Parliament, where he is protected from the law." Then follow words which are included in the statement of claim; "Some time ago we libelled Mr. Calwell deliberately. We do so again by saying that he is maliciously and corruptly untruthful; in other words a dishonest, calculating liar." That ends the words complained of, but the article goes on to invite the plaintiff to take action against the newspaper, and it deals with that prospect.

It is clear enough that the words complained of do contain a specific charge of untruthfulness in relation to the question of censorship with reference to the escape of Japanese prisoners at Cowra. But, in my opinion, the words complained of are capable of a further meaning, namely, a meaning that charges the plaintiff with more frequent, or even habitual, mendacity. Whether the words bear that meaning is a matter for the jury. If the jury give that meaning to them, a plea of justification would not be made out except by proof of the truth of the words in that sense. I think that the reference to a previous deliberate libel upon the plaintiff and the paragraph, not included in the statement of claim, referring to lies spoken under the privilege of parliament are enough to enable a jury to say that a general charge of untruthfulness is contained in the words "We do so again by saying" &c.

It is unnecessary for me to discuss whether the plaintiff can, as a matter of pleading or otherwise, take any steps to limit the construction that may be given to the libel so that it does not extend beyond the one occasion. For the plaintiff has not attempted to take any formal steps to that end, if any are open to him; what has happened is that his counsel as a matter of argument has advanced the contention that the words he has sued upon are not fairly open to the wider construction.

It does not, however, follow that all the particulars of justification which the defendant has filed can be sustained. To make out a plea of justification it is necessary for the defendant to prove the truth of the statement that the plaintiff is "maliciously and corruptly untruthful; in other words a dishonest, calculating liar." Simple departures from fact appear hardly to be enough.

Among the twenty-one paragraphs of the particulars given under the plea of justification, there are not a few containing expressions by the plaintiff of matters of opinion, inference, comment or criticism. The statements of this kind attributed to him, however extreme may be the form they assume, cannot be treated in the same way as statements of physical events or occurrences. To base a charge of falsehood upon them it is, in effect, necessary to allege and prove either that when he expressed them he disbelieved in the opinions, inferences, comments or criticisms he was professing, or that, in spite of the form of his statements, he really meant to convey a more objective meaning that was false.

Having regard to the very strong and definite character of the charge of lying made in the libel, it is open to doubt, at all events in the case of some of the statements of this nature ascribed by the particulars to the plaintiff, whether, by either process mentioned, they can be successfully relied upon as a justification. But, however this may be, the particulars deal with what may be called expressions of comment or criticism in a way which I think is misconceived and cannot be allowed to stand.

They allege that, on the proper construction of the given statement, it had a meaning which is then set out, that upon such construction it is untrue and the plaintiff made it knowing it to be untrue or without honest belief in its truth.

When a charge of dishonest statement is based upon the views expressed by the man against whom the charge is made, the question is what he himself meant to convey by the words he used and whether he disbelieved in the views he so intended to convey. The pleader seeks to fix a construction upon the words uttered independently of and without reference to what the plaintiff himself intended by the alleged utterance and to make the falsity of the meaning so attributed to it the basis of the charge of dishonesty, and to do so by alleging that he knew the contrary of the meaning or had no positive belief. This, I think, is wrong. Further, some of the constructions so placed upon the words attributed to the plaintiff seem more than dubious.

Another difficulty is that, in some cases, specific passages have been relied upon as definitely false in expression and, at the same time, either of themselves or as part of a larger whole, they have been used as bearing a further or secondary meaning alleged to be untrue and one which the plaintiff knew to be untrue or had no belief in.

This appears to me to make still more embarrassing particulars which, in any case, I am not prepared to allow to stand in their present form. If par. 3 of the particulars under the plea of justification is referred to, it will provide an example of what I have said. Sub-paragraph (f) fixes a construction on what, by sub-par. (a), the plaintiff is alleged to have said and then avers that upon such construction it is untrue, and so on. It seems to me, moreover, that the construction expressed by the words "from motives of pecuniary gain" is not likely to be accepted as an accurate version of a statement which appears to be dealing rather with necessitousness. Then sub-par. (b) alleges the falsity of, in effect, an opinion expressed about what may be thought to be an economic matter, although no doubt an opinion which the defendant would say was so extreme as to warrant the charge he makes. Again, though it is a small point, in sub-par. (d) the word "many" goes somewhat beyond the text set out in sub-par. (a).

It would be possible to go through the various paragraphs which are subject to the objections I have stated, and which are illustrated to some extent by par. 3, and to pick out the portions which can be supported, and strike out the rest. But as I propose in any case to give the defendant leave to amend, and as I think that, in the interests of the defendant's own case, some careful reconsideration of the materials which the pleader has used and of the manner in which he has used them is desirable, I shall strike out the whole of each paragraph affected or infected.

The paragraphs involved are numbers 3, 5, 6 (an example of interrogative statements of a specific kind mixed up with meanings by construction), 7, 8, 9, 10, 11, 12 (where, however, the words "upon its proper construction" hardly add anything), 13, 14, 16, 19, 20 and 21. Paragraph 15 alleges the making of the statement which provoked the actual libel, though it is placed out of chronological order. It is of course cardinal to the plea of justification. But in some of the particulars of falsity the same formula fixing constructions on the text is employed. I shall strike out the sub-paragraphs containing allegations of meanings by construction said to be false, viz. sub-pars. (b), (c), (f), (g), (h), (i) and (j).

Counsel for the plaintiff contended that even if the meaning of the words complained of was not necessarily limited to untruthfulness on the specific occasion yet the charge of more general untruthfulness, of which I have held it capable, could not extend beyond a charge of lying in statements concerning the defendant, the newspaper, the company and its managing director, Packer. I do not think that a jury would be bound to place even this restriction upon the ambit of the charge.

So far I have not dealt with pars. 1 (a), (b) and (c) of the particulars under the plea of justification contained in the second paragraph of the statement of claim. The sub-paragraphs purport to set out the articles referred to by the words contained in the libel: "Some time ago we libelled Mr. Calwell deliberately." In my opinion, the defendant is not at liberty to do this. To state in the particulars what that alleged former libel was is not a justification of the present libel. Indeed, although a statement that at some former time the defendant libelled the plaintiff may support a defamatory innuendo, I should doubt whether in its natural primary meaning such a statement is itself defamation. At all events, to repeat the former libel in the particulars and to leave it at that cannot be right. I shall therefore strike out par. 1.

The statement of claim alleges that the words complained of were published in Melbourne in the State of Victoria and in other parts of the Commonwealth of Australia. The newspaper is published in Sydney, and its principal circulation is in that city and in New South Wales. Under the law of New South Wales, truth is not a justification unless it would be for the public benefit.

Upon my drawing the attention of counsel to this fact, I was informed by the defendant's counsel that some communication had passed between the parties, resulting in a statement by the plaintiff's solicitors that publication of the words complained of in Victoria was clearly alleged and that the plaintiff's counsel had stated (scil. during the hearing of an application in Chambers) that the publications elsewhere in Australia would be relied on to show that the libel was widely diffused, thus indicating that such publications would be relied on in connection with damages, and that, in view of this, the defendant's plea of justification was drawn in this form, the venue being at present laid in Victoria. Whatever the result of all this may be, it is a matter for the parties themselves, but they ought to be sure that there is no misunderstanding about it.

The plea of privilege is contained in par. 3 of the defence. The defendant admits that he wrote and published the article containing the words complained of. It is therefore as the actual author of the defamatory matter that he must make out his defence of privilege.

The pleading claims privilege on the ground or grounds that the plaintiff had from time to time made statements attacking the defendant both personally and as editor of the newspaper, attacking the company which published the newspaper and attacking Packer, its managing director, and attacking newspapers published in Australia "particularly in respect of their right to publish in accordance with the law matters of public interest," and that the words complained of were published bona fide in defence of, put shortly, these persons and interests and for the purpose of preventing the public from believing the statements to be true.

Particulars of the alleged attacks by the plaintiff were given. They are voluminous and cover a period from December 1940 to the day before the publication of the article. The first paragraph of the particulars sets out statements alleged to have been made by the plaintiff in the House of Representatives at various times in 1940 and 1941 with reference to the press generally. The second, third, fourth and fifth paragraphs ascribe to the plaintiff statements in the House made in May 1942 concerning the defendant. The statements purport to arise out of a proposal that the defendant should go to America on a lecture tour and they contain a number of reflections upon him personally, as a journalist and as editor of the newspaper. The next paragraph (no. 6) sets out an article written by the defendant in response to these attacks and published in the newspaper of 21st May 1942. It includes a counter-attack upon the plaintiff, accuses him of availing himself of the protection of parliamentary privilege to impugn the defendant, the managing director, and others connected with the newspaper, and challenges him either to repeat without that protection what he said in parliament so that the defendant might sue him for defamation, or else, in effect, to take the role of plaintiff himself, and sue the defendant for the defamatory statements concerning him contained in the article giving the challenge.

This article was followed by a statement, set out in the same paragraph of the particulars, made by the plaintiff in Parliament on the same day. The statement deals with the newspaper article, reflects on the defendant, both personally and as editor, and upon the newspaper, and declines the challenge to the plaintiff to expose himself to suit or to sue, giving as a ground that in New South Wales truth is not a defence unless its publication is found to be for the public benefit, and as a further ground, the composition of juries in New South Wales. The particulars then proceed, in par. 7, to set out what the newspaper published by way of response to this statement.

It amounted to a repetition of the challenge and a statement that the plaintiff had nevertheless failed to sue. A few days later the plaintiff is alleged to have referred again to the matter by a question in the House mentioning the defendant specifically. But the following paragraphs of the particulars, viz. nos. 8, 9, 10 and 12, set out complaints on the part of the plaintiff against the press generally. Two of them (no. 9 (a) and no. 10 (c)), however, mention the Daily Telegraph incidentally though dyslogistically. These utterances cover dates from December 1942 to 15th December 1943. Paragraph 12 alleges minor uncomplimentary references to the newspaper.

The last of these led to an article in the Daily Telegraph which, among other things, recounted the challenge to the plaintiff and his failure to sue. This is alleged in par. 14. Paragraph 15 sets out another uncomplimentary reference to the newspaper made by the plaintiff in the House. The date given is 24th February 1944. Paragraph 16 sets out a strong criticism by him on 14th April 1944 of some statement made on behalf of Australian Newspaper Proprietors' Association; and par. 17, some further strongly worded attacks on the press generally, said to be made in April 1944. Paragraph 18 alleges an attack upon the newspaper, made by the plaintiff in the House on 6th September 1944. It had reference to coal-mining.

Finally comes par. 19, setting out the statement made by the plaintiff on 24th November, which formed the actual occasion of the article published on 25th November 1944, the article that forms the subject of the action.

Apart from a more general consideration which, in my opinion, makes the entire plea of privilege inadmissible, a number of objections arise upon these particulars and upon the form of the paragraph pleading the defence of privilege.

In the first place, the paragraph mixes up several grounds for claiming privilege, viz. (1) the defendant's own right to defend his reputation, whether as a man or as a journalist, against public attack, (2) the right of the newspaper proprietor to answer by the hand of the defendant attacks made upon the newspaper, in other words to defend its business interests, a right from which flows a derivative protection for the defendant, (3) the privilege of the defendant to defend his managing director, (4) the right claimed by the defendant to protection in publishing defamatory matter in defence of newspapers published and circulated in the Commonwealth against attacks upon them "particularly in respect of their right to publish in accordance with the law matters of public interest."

The manner in which these heads of alleged privilege are mixed up, both in the pleading and in the particulars, would, I think, prove embarrassing in the circumstances of this case. If the plea stood it would, I think, be necessary to recast it and allege clearly the facts supporting each of the various heads of privilege claimed.

Further, the fourth of these heads is, in my opinion, misconceived. It confuses the defence of qualified privilege with the defence of fair comment and with the circumstances sufficient to found a right of comment or public criticism.

The particulars given in pars. 1 (a) to (g), 8, 10 (a), (b), part of (c) and (d), and 12, allege statements disparaging to the Australian press and attacking the conduct of newspapers generally without specific reference to the Daily Telegraph or the defendant.

No case has yet gone as far as deciding that attacks upon an institution, such as the press, the theatre, or the Bar, or a section of the community create a privileged occasion in each person belonging to or concerned in the institution or the section of the community so that he is enabled in the exercise of a qualified privilege attaching to him personally to publish defamatory matter by way of defence or counter-attack. Doubtless the conduct of the attacker becomes a matter of public interest upon which anyone may comment, and, further, in judging whether the answer is fair and bona fide comment the nature of the attack and the position of the party making the comment should be considered. But in any case, if such a qualified privilege were held to arise from general attacks upon newspapers and their right of free expression, the actual words complained of and the article of which they form part are clearly outside the scope of any occasion that could be created by the attacks set out in the particulars mentioned.

In the next place, the connection is not made out between the article containing the words complained of and many of the other particulars of attacks by the plaintiff on the defendant and the newspaper.

It may be conceded at once that the attack alleged to have been made on 24th November 1944 and set out in the nineteenth paragraph of the particulars would give rise to a privilege to lay before the public an appropriate answer and that on the face of it the words complained of do deal with that attack. But the words or the article in which they occur do not specifically deal with any other attack. There is, however, on the face of the article a reference to what is described as a humiliating defeat suffered by the plaintiff in April 1944 when he tried to suppress the newspapers. There is also a reference to some previous controversy in the words: "Some time ago we libelled Mr. Calwell deliberately." It may be that these references give a foundation upon which, by proper allegations of fact, the defendant might show a connection between the article and earlier attacks by the plaintiff upon him and his newspaper or his managing director, a connection in the light of which the article would be considered an intended exercise of the right of defence to those attacks. But, whether that is possible or not, I think the pleader is not entitled to leave it to be spelt out as a matter of inference from what appears on the face of statements set out in the particulars. Further, in the case of some particulars there is nothing on the face of them to support or suggest the inference.

The paragraphs I have already mentioned, viz., 1 (a) (b) (c) (d) (e) (f) and (g); 8; 10 (a) (b) (c) and (d); 12, fall within the application of the foregoing observations. But they also apply to pars. 2 to 7 and to pars. 9, 10 (c), 11, 12 and 13.

If I had been of opinion that a plea of privilege to the libel in question could be supported, nevertheless, for the reasons I have stated, I should have struck out these particulars and par. 3 of the defence, at the same time giving the defendant leave to amend. But I am of opinion that in the circumstances of the present case a plea of privilege on the grounds indicated by the defence cannot be sustained.

The article containing the words complained of amounts to a charge of lying, framed with every appearance of care and deliberation and expressed with strength, together with a challenge to the plaintiff to bring an action of defamation upon the charge, obviously to the end that the issue of his veracity might be submitted to the courts of justice. The article, which is headed, "Calwell can sue on this," states that it is not the first time the newspaper has called him a liar, proceeds to say that unfortunately his lies are always spoken under the privilege of parliament where he is protected from the law, refers to a previous deliberate libel upon him, makes the charge, invites him to sue, speaks of the damages it should be worth "if the court will give him a verdict," suggests the possibility of his giving them to a charity in his electorate and concludes—"Surely that should be a good incentive to issue a writ at the earliest possible moment. Otherwise we will gladly stand him the cost of a handsome yellow flag."

The defence of qualified privilege means that, in the absence of malice, the existence of which of course the defendant denies, the libel is not actionable, whether the charge it contains be true or untrue. It means that the publication of the defamatory statements is protected and that the question whether they are or are not true is immaterial. When the privilege of the occasion arises from the making by the plaintiff of some public attack upon the reputation or conduct of the defendant or upon some interest which he is entitled to protect, the purpose of the privilege is to enable the defendant on his part freely to submit his answer, whether it be strictly defensive or be by way of counter-attack, to the public to whom the plaintiff has appealed or before whom the plaintiff has attacked the defendant. The privilege is given to him so that he may with impunity bring to the minds of those before whom the attack was made any bona fide answer or retort by way of vindication which appears fairly warranted by the occasion. In Koenig v. Ritchie[4] Cockburn C.J. used the expressions: "Bona fide for the purpose of the" (defendant's) "defence and in order to prevent the charges operating to" (his) "prejudice," expressions which have been taken into the forms of pleading.

The foundation of the privilege is the necessity of allowing the party attacked free scope to place his case before the body whose judgment the attacking party has sought to affect. In this instance, it is assumed to be the entire public. The purpose is to prevent the charges operating to his prejudice. It may be conceded that to impugn the truth of the charges contained in the attack and even the general veracity of the attacker may be a proper exercise of the privilege, if it be commensurate with the occasion. If that is a question submitted to or an argument used before the body to whom the attacker has appealed and it is done bona fide for the purpose of vindication, the law will not allow the liability of the party attacked to depend on the truth or otherwise of defamatory statements he so makes by way of defence.

For both parties have invoked the judgment, not of the courts of law, but of the public or a section of the public or other body. In the present case, however, the defendant has chosen to challenge the plaintiff to come into the courts of law and to submit the charge as an issue for their decision. He has held up before the plaintiff the consequences of his failure to do so. That is not, I think, the kind of defence or vindication that comes within the privilege. It is inconsistent with the very basis and rationale of the protection which the privilege gives. It gives a protection against liability to suit for a statement made in a controversy submitted, so to speak, by the plaintiff himself to another forum.

To make a charge and invite the plaintiff to invoke the judgment of the courts of law is to depart from the course around which protection is thrown. The defendant cannot say in the libel, "This is my charge against you; I make it so that you may submit the issue to the courts and if you refuse the challenge you are branded," and then, when the plaintiff accepts the challenge, set up a privilege which, if well founded, intercepts the issue and defeats the action. Upon principle I think that the form of the libel takes it outside the privilege claimed for the occasion. So far as I can ascertain, the question is not covered by authority.

For these reasons, I strike out par. 3 of the defence and the particulars thereunder.

In the result, the order will be that, of the particulars given under par. 2 of the defence, the following paragraphs are struck out: viz. nos. 1, 3, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 (b), (c), (f), (g), (h), (i), (j), 16, 19, 20 and 21, and par. 3 of the defence and the particulars thereunder. Leave is given to the defendant to file amended particulars under par. 2 of the defence. Amended particulars to be filed within seven days.

The defendant will pay the costs of the application.

Penton appealed to the High Court against the whole of the judgment of Dixon J.

Order varied by striking out the order and direction as to par. 3 of the amended defence and the particulars thereunder and by substituting therefor an order that the defendant be at liberty to amend the said paragraph and particulars and by directing that the amended defence and particulars under pars. 2 and 3 thereof be filed within 21 days from the date of the order. Order otherwise affirmed. No order as to costs of appeal.

Solicitors for the appellant, Dawson, Waldron, Edwards & Nicholls, Sydney, by Blake & Riggall.

Solicitors for the respondent, McKenna & Talbot.

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1. (1893) 2 Q.B. 183, at pp. 186, 187.

2. (1862) 3 F. & F. 413, at p. 420 [176 E.R. 185, at p. 188].

3. (1893) 2 Q.B. 183, at pp. 186, 187.

4. (1862) 3 F. & F. 413, at p. 420 [176 E.R. 185, at p. 188].