Calwell v Ipec Australia Ltd [1975] HCA 47

High Court of Australia Barwick C.J. Gibbs, Stephen, Mason and Jacobs JJ. Calwell v Ipec Australia Ltd [1975] HCA 47

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Oct. 29 Barwick C.J.

I have had the advantage of reading the reasons for judgment prepared by my brother Mason in this appeal. I agree, that the appeal should be dismissed, and with my brother Mason's reasons for that conclusion.

Gibbs J.

In my opinion this appeal should be dismissed. I have had the advantage of reading the reasons prepared by my brother Mason, and am in agreement with them, and have nothing to add.

Stephen J.

I agree that this appeal should be dismissed and do so for the reasons given by my brother Mason; I wish also to associate myself with the general reasons of Jacobs J. concerning the application of pars (c) and (e) of s. 17 of the Defamation Act, 1958 N.S.W. to cases involving political attitudes of those who take a public part in political matters.

Mason J.

In this action Mr. Arthur Calwell, the plaintiff, who died after the trial, sued the respondent for defamation in the Supreme Court of New South Wales in respect of an article published in the respondent's weekly newspaper The Sunday Review in its issue of 25th April 1971. The jury returned a verdict for the plaintiff in the amount of $18,000. On appeal, the Court of Appeal set aside the verdict and judgment and substituted a verdict and judgment for the respondent. It is conceded that the appellant, the plaintiff's executrix, in order to profit from the appeal to this Court against that decision, must succeed in having the jury's verdict restored—a new trial would be of no avail in view of the principle expressed in the maxim actio personalis moritur cum persona. This is by the way, for I have come to the firm conclusion that the attack made upon the grounds advanced by the Court of Appeal for its decision cannot be sustained.