Mowlds v Fergusson [1940] HCA 38

fe ee ' 206 HIGH COURT

(HIGH. COURT OF AUSTRALIA.)

MOWLDS 3 ' : 4 + PLaIntifF, 3 AND

FERGUSSON fi és 2 . . Raspoy

DEFENDANT,

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

H.C. or A, Defamation—Libel—Qualified privilege—Police officer—Report in course f 1940. Publication to former superior officer.

Pa The respondent, a senior police officer, was severely criticized by

Pe _ Commissioner in respect of a report which the respondent: ad made in v.18 195 in a matter involving the conduct of the appellant. In 1937 the res ees as a result of a request originating from the Premier, made a further r 'Starke, Dixon on the same matter. In the 1937 report the respondent sought to justify the Williams JJ. 1934 report, and it contained matter defamatory of the appellant.

in 1934 but bad since resigned. In 1934 the respondent had ob advice and referred to him.

Held that the publication to C. was on an occasion to which qualified attached.

Decision of the Supreme Court of New South Wales (Full Court), point, reversed.

Apprat from the Supreme Court of New South Wales.

An action for defamation was brought in the Supreme New South Wales by William George Mowlds against George Fergusson in which the plaintiff claimed damages in the s £3,000.

'At the first trial of the action the plaintiff succeeded in o a verdict upon both counts contained in the declaration b t Full Court of the Supreme Court set these verdicts aside and

OF AUSTRALIA.

verdict for the defendant upon one of the counts and upon the 0 ordered a new trial: Mowlds v. Fergusson (1). Leave to from this decision was refused by the High Court (2). defendant was an inspector of police and the libel was a report by him in 1937 in his official capacity to the Metropolitan intendent of Police, his superior officer, under a direction jing from the Premier of the State. The plaintiff supplied particulars which stated that the publica- relied upon were made to the Premier, the Chief Secretary, Commissioner of Police, the Metropolitan Superintendent of and two sergeants of police. At the conclusion of the evidence at the second trial the plaintiff it and obtained leave to rely upon a further publication of the It was a publication to a former Commissioner of Police, though he had been concerned in his official capacity with the ers upon which the defendant was directed to report, had in meantime retired from office. The judge before whom the ond trial took place ruled that this publication also was privileged, 'ruling the correctness of which the plaintiff contested. No substantial issue remained except whether the privilege had been troyed by express malice and the case went to the jury upon 'issue of malice and upon that alone. 'The jury returned a verdict, in favour of the defendant. | motion for a new trial made by the plaintiff on several grounds dismissed by the Full Court of the Supreme Court. Jordan C.J. d Bavin J., Halse Rogers J. dissenting, held that the publication of the report to the retired commissioner was not the subject of any rivilege but the court unanimously held that the consequences not such as to warrant the ordering of a new trial. om that decision the plaintiff appealed, by leave, to the High