Penton v Calwell [1945] HCA 51

Penton v Calwell [1945] HCA 51

The Court held (Latham CJ, Rich, Starke, Williams JJ; McTiernan J dissenting) that an editor of a newspaper cannot claim privilege for a defamatory publication merely as being a reply to attacks on newspapers generally; the attack must refer to the newspaper in which the defendant is interested. The inclusion of a challenge to sue does not prevent a plea of qualified privilege, provided the reply is germane to the attack relevant to the defendant’s interests. Particulars under a plea of justification must set out material facts justifying the charge of dishonesty. The order striking out the entire plea of qualified privilege was varied to allow amendment; certain particulars and...

Parties
Defendant: Brian Penton; Plaintiff: Arthur Augustus Calwell
Jurisdiction
Australia
Procedural Posture
Defamation Action (libel) / Appeal From Order Striking Out Parts of Defence—high Court Judgment
Outcome
Order varied—leave to amend plea of privilege and particulars given; otherwise order affirmed. No order as to costs of appeal.
Legal Topics
Qualified Privilege, Justification in Defamation, Pleading Requirements, Parliamentary Privilege, Striking Out Pleadings
Defamation Media Law Civil Procedure Qualified Privilege Justification in Defamation Pleading Requirements Parliamentary Privilege Striking Out Pleadings

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Parties

Brian Penton

Defendant

Arthur Augustus Calwell

Plaintiff

Procedural Posture

Defamation Action (libel) / Appeal From Order Striking Out Parts of Defence—high Court Judgment

Legal Issues

  1. 1 Whether an editor may claim qualified privilege for a defamatory reply to attacks on newspapers generally
  2. 2 Whether inclusion of a challenge to sue excludes the defence of privilege in defamation
  3. 3 Whether particulars of justification must set out material facts in pleading charge of dishonesty

Ratio Decidendi

The Court held (Latham CJ, Rich, Starke, Williams JJ; McTiernan J dissenting) that an editor of a newspaper cannot claim privilege for a defamatory publication merely as being a reply to attacks on newspapers generally; the attack must refer to the newspaper in which the defendant is interested. The inclusion of a challenge to sue does not prevent a plea of qualified privilege, provided the reply is germane to the attack relevant to the defendant’s interests. Particulars under a plea of justification must set out material facts justifying the charge of dishonesty. The order striking out the entire plea of qualified privilege was varied to allow amendment; certain particulars and...

Court Disposition

Order varied—leave to amend plea of privilege and particulars given; otherwise order affirmed. No order as to costs of appeal.

Orders

  • Order as to para 3 of amended defence and particulars thereunder set aside and substituted with liberty to amend within 21 days.
  • Order as to striking out particulars under justification otherwise affirmed.