Triggell v Pheeney [1951] HCA 23

High Court of Australia Dixon, McTiernan, Williams, Webb and Kitto JJ. Triggell v Pheeney [1951] HCA 23

ORDER Appeal allowed with costs. Order of the Supreme Court discharged. Restore verdict of jury. Motion to Supreme Court that the verdict be set aside and a new trial be had dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

May 10 Dixon, Williams, Webb and Kitto JJ.

This is an appeal by leave from an order of the Supreme Court of New South Wales setting aside a verdict for the plaintiff in an action of libel and directing a new trial. By the verdict the plaintiff recovered £1,955 damages. The grounds upon which the verdict was set aside are concerned with the assessment of damages and no question arises with respect to the establishment of the cause of action. The Supreme Court considered that the amount of damages awarded was excessive and based the order setting aside the verdict on that ground. But the court held also that the jury had been erroneously directed in relation to the use which might be made, in assessing damages, of the position adopted by the defendant at the trial.

The plaintiff, who in this Court was the appellant, occupied a dairy farm near Bega belonging to the defendant. He occupied it as a share farmer. The arrangement between them had not been reduced to writing, but, so far as material, it appears to have provided for the equal division of the net returns from the supply of cream to the butter factory and from the sale of pigs. It was for the plaintiff to market the pigs through local stock agents, who would send the account sales and the proceeds of the sales to the defendant. Correspondingly the plaintiff might buy pigs through the same agents. The pigs were taken between the farm and Bega by lorry. The lorry belonged to a carrier named Shearer who charged cartage which was paid by the defendant and debited against the returns to be divided. The plaintiff went into occupation of the dairy farm as a share farmer on 28th May 1945 and, under the Agricultural Holdings Act 1941, Part V., 28th May would be the annual date for the expiry of any notice to quit the defendant might see fit to give the plaintiff. For some two years matters seem to have gone well enough between them; but in the later part of 1947 their relations appear to have become unfriendly and as time went on a condition of open warfare developed. The plaintiff, who was a man of seventy years of age, worked the farm with the aid of his sons. The defendant, whom the plaintiff represented to be a man of substance and not without influence in the district, acquired another farm in the neighbourhood. The plaintiff complained that some of the heifers from the farm he was working were not brought back to it in due time, that horses were borrowed and that cows were demanded in exchange for heifers. He suspected or believed that the reason lay in the acquisition of the new farm and that the defendant wished to get rid of him. The defendant, who disputed these facts, complained on his side that the plaintiff took no steps to keep down the rabbits, a responsibility the plaintiff however disclaimed, that he failed to take proper steps for herd recording, that he did not do some work in connection with building further pig pens, that he bought inferior pigs and that otherwise he did not carry on the work of dairy farming satisfactorily.