1905. MACINTOSH v. DUN. able to pay for all requirements, and required no credit. The turnover was probably not so large as formerly, but this was due to depression in trade generally. Whilst John Macintosh, senr. (who is regarded as a wealthy man, and who in the past served the city of Sydney well both as Alderman and Member of Parliament), was connected with the firm they were always in good credit; but when the present constitution becomes generally known it is thought their credit will be materially affected, the reasons given being the reported extravagant tastes and habits of the managing partner and the lack of personal supervision. The business methods of the firm are adversely criticised and described as slipshod, but whilst it is considered that the business is suffering in consequence, they are regarded generally as sound and responsible for their business obligations. Their stock, although fairly heavy, is varied and old, and to a great extent second-hand; and in some quarters it is considered that if subjected to a forced realisation it would not bring more than 10s. in the £. They own the business premises they occupy in Pitt-street, which are valued at about £30,000, but the extent of the encumbrances on the same has not been ascertained. In some quarters they are reported slow in meeting their engagements, and owing to the circumstances mentioned a certain amount of caution is exercised; but generally speaking, they are in fairly good credit for their requirements in this market, which are not very extensive." Subsequently, without any further application by Messrs. Holdsworth, MacPherson & Co., they were supplied with the following additional report: "Macintosh and Sons, hardware merchants, Pitt-street, Sydney, December 10, 1903. Numerous inquiries having been received regarding the real status of the above firm, special effort has been made to obtain details to enable creditors to determine their responsibility. The withdrawal of John Macintosh, senior, from the firm has apparently only recently been known; under the Registration of Firms Act his name did not appear as a partner. It is stated that pressure is, at the present time, being brought to bear to induce him to re-enter the firm, and take over the actual management. It is reported that they have a considerable overdraft at the bank; in some quarters reputed upwards of £40,000 to £50,000, but they have been very long-winded in their payments, and a certain amount of uneasiness has been felt in connection with the account. In the trade we find a number of houses selling to the concern amounts ranging from a small figure up to £2,000 to £3,000, and general experience latterly has been that they are quite slow in their payments, and in some cases extensions have been granted. The sons do not appear to possess much, if any, tangible responsibility, and the concern has heretofore been credited on the believed entire responsibility of the father. They have a large stock, but, as mentioned in previous reports, the same is very badly kept, and would suffer a considerable depreciation on forced realisation. Outside of the stock, as a firm, they are not thought to possess any means save their book debts. Their indebtedness is heavy, but the impression is that John Macintosh, senior, would be liable practically for all or nearly all of the concern's indebtedness. His position is rather hard to determine. Careful search of the records has been made under the Real Property Act and has disclosed the following (details of land belonging to J. Macintosh, senior, comprising mainly property in Pitt-street, and residence at Darling Point, all subject to a mortgage to the Scottish Widows' Fund for £25,000):-It is a difficult matter to get actually tangible information concerning the individual or firm's worth, as for instance, it is reported that they are owing £12,000 to one English firm. John Macintosh, senior, has always enjoyed an excellent reputation as to character, and the credit of the concern, when he was a member, was good. Probably, like others, they have felt the effects of the long continued drought, amd the present depression in trade, are presumably solvent, yet prudent dispensers of credit are advised to have a clear understanding with the firm as to their exact position." The present action was for libel upon the two reports above set out. At the trial Cohen, J., held on the authority of Foley v. Hall (12 N.S.W.L.R. 175; 8 W.N. 20) that the occasion was not privileged, and the jury found a verdict for the plaintiffs for 8001. The jury also found specially in answer to questions left to them by his Honour (1) that the defendants acted from a sense of duty to their subscribers and (2) that they exercised care as far as possible. The defendants now moved to make absolute a rule nisi for a new trial, or to enter the verdict for the defendants, upon the grounds: (1) that the verdict was against evidence, and (2) that his Honour should have directed the jury that the publications complained of were privileged, and not actionable without proof of express malice. The plaintiffs moved to make absolute a cross rule for a new trial upon the ground (amongst others) that his Honour erroneously rejected a further report dated the 11th March, 1904. This report was tendered to show malice, but was rejected on the ground that it was not shown to have been published. The report was as follows: 1905. MACINTOSH V. DUN. SUBSTITUTE FOR ALL PREVIOUS REPORTS. James Macintosh 11th March, 1904. John Macintosh, Junr., called at the Agency's office to-day and furnished the following information:-Above are the registered partners under the law, he says that when the matter of registration came up his father, John Macintosh, senior, gave instructions that only his and his brother's names be given as the owners of the business. That no formal transfer of same to them has ever been made, but that his father is getting along in years and that they would eventually inherit a large portion of his estate, and that he had gradually been leaving the business more and more to their management. That they still look upon him as the chief, and that he gives the business more or less of his attention. He states that their stock would invoice some £60,000, that they have in outstanding books debts in the neighbourhood of £10,000; that the latter would offset all their outstanding indebtedness, except that they owed to the bank. He declined to state what the amount of their overdraft was, but that their father was in his estimation worth 1905. MACINTOSH v. DUN. above all liabilities in and out of business, about £100,000 net, and that the bank hold certain equities in real estate as security for any advances made to the firm. (Here followed list of real estate of J. Macintosh, senior, as in previous report). In addition to the above Mr. John Macintosh, senior, is understood to own some country properties, and probably additional city real estate, but it is a difficult matter to get an estimate of his actual net worth, as it cannot be ascertained what his overdraft is to the bank. However the impression is that he is amply solvent, though the stock of merchandise while probably invoicing £60,000 would be subject to some scaling, as the business is a very old established one, and the merchandise carried is of a varied description. Their place of business has the reputation of being one where almost any article of machinery or hardware parts of fittings could be purchased. The father has for half a century or more been a prominent figure in this city, looked upon as well to do, and has served as an alderman and member of Parliament. The general impression now is that while he has practically turned the business over to his sons, yet that he is to all intents and purposes behind same and responsible for its obligations though legally, not being registered as a partner, some technical questions might arise. The family has always been well regarded and while the concern is a unique one, and its business probably not as heavy now as in former years, it is thought that they are in a position to take care of their obligations, and Mr. John Macintosh, junior, states that anything owing by the firm, if presented on their usual monthly pay day, will be promptly settled. Amongst the Sydney wholesale houses find a number of concerns who have sold the firm for many years, amount of credit ranging from a small figure up to a considerable one. Some of the houses say that they pay promptly, others that they are a little slow, but the concern is willingly credited on the strength of the senior's responsibility. The sons do not claim to add any particular to the firm. Business conditions generally in New South Wales have been depressed for some time owing to the long drought, but have recently improved considerably. Officers will please call in and cancel previous reports on this firm, and supply above report in answer to new enquiries. Pilcher, K.C., Want, K.C., and Blacket, for the defendants. The learned Judge was in error in holding that Foley v. Hall (12 N.S.W.L.R. 175; 8 W.N. 20) applied to the present case. If Foley v. Hall is to be taken as deciding that in no case is a communication of this nature privileged, it is submitted that it goes too far and should be overruled; but if read as strictly confined to its own facts, it is clearly distinguishable from the present case. There the whole of the information collected was published in a news sheet which was supplied to all subscribers indiscriminately whereas in the present case it is the practice of the defendants in the usual course of their business to supply a subscriber with information only at his express request to be informed concerning a particular trader. It is well settled that communications made in answer to enquiries as to the character or credit of those with whom the v. DUN. enquirer is about to do business, are privileged: Waller v. Loch 1905. (7 Q.B.D. 619). In the present case the duty of the defendants MACINTOSH to communicate information to their subscribers was a legal one arising out of contract. The defendants' contract was to supply information, if asked for, as to the commercial standing of other traders, and where a communication is made in pursuance of such an obligation, the occasion is privileged, and the plaintiff can succeed only upon proof of express malice. And if such obligation exists the cominunication is privileged even though it was volunteered, and not made at the express request of the subscriber: Clark v. Molyneux (3 Q.B.D. 237); Stuart v. Bell ([1891] 2 Q.B. 341); Cockayne v. Hodgkisson (5 C. & P. 543); Robshaw v. Smith (38 L.T. 423); Harrison v. Bush (5 El. & Bl. 344); White and Co. v. Credit Reform Association ([1905] 1 K.B. 653); Howe v. Jones (1 T.L.R. 461); Fryer v. Kinnersley (15 C.B. N.S. 422); Cowles v. Potts (34 L.J.Q.B. 247); Spill v. Maule (L.R. 4 Ex. 232); Jenoure v. Delmege ([1891] A.C. 73); Ormsby v. Douglass (37 New York Rep. 477); Davies v. Hill (2 Argus L.R. 115); Wallace v. Carroll (11 Ir. C.L.R. 485); Adams v. Coleridge (1 T.L.R. 84); Davis v. Reeves (5 Ir. C.L.R. 79). There is no evidence whatever of malice, and the jury in their special findings expressly so found. The defendants are therefore entitled, not only to a new trial, but to have the verdict entered for them. Bruce Smith, K.C., and Shand, for the plaintiffs. To create privilege there must either be mutual interest, or some duty which justifies the communication of the information in the interests of society. Here there was no social or moral obligation whatever, nor any such mutual interest as is necessary before the rule can be applied. The mere existence of a contract, or the payment of a fee does not of itself bring the case within the principle which has for its object the benefit of society generally. The defendants carried on a business for profit, and the only duty owed by them was to their own subscribers. It has never been held that privilege attaches to a contract to disseminate slanderous information. But, admitting for the sake of argument that a man in business is concerned to enquire as to the credit of those he deals with, 1905. that a contract existed to supply this information, and that these MACINTOSH reports would have been privileged if made at the request of the V. DUN. subscriber, this is a different case altogether. The defendants have precluded themselves from setting up their obligation under the contract since they have themselves disregarded the conditions of the contract, and, instead of waiting for a request, went out of their way to volunteer information, and to invite enquiry. We do not say that a statement volunteered cannot be privileged, but it stands on a different footing to one made at the request of the party interested. The latter may be privileged where the same information if volunteered would be actionable. A statement volunteered is only privileged where there is some immediate necessity for making it, where life or property is in obvious peril, or the relationship between the parties is such as to render it right in the interests of society to apply the protection of privilege: Folkard, 5th ed., 533; Odgers, 3rd ed., 232, 234; Pattison v. Jones (8 B. & C. 578); Bennett v. Deacon (2 C.B. 628); Brooks v. Blanshard (1 Cr. & M. 779); Rogers v. Clifton (3 B. & P. 587); Gardner v. Slade (13 Q.B. 796); Kine v. Sewell (3 M. & W. 297); King v. Watts (8 C. & P. 614) ; Searles v. Scarlett ([1892] 2 Q.B. 56); Cosgrave v. Trade Auxiliary Co. (8 Ir. C.L.R. 349); Cosette v. Dun (18 Canada Sup. Ct. 222). To enable the Judge to come to a decision as to whether this volunteered communication was privileged, he was entitled to look beyond the mere relationship of the parties, and to consider all the circumstances of the case, and amongst other factors the existence or absence of malice in fact. The Court is now in the same position as the Judge at the trial, and must consider all the circumstances in order to see whether the occasion was privileged. THE CHIEF JUSTICE. Surely the question of the relationship between the parties, on which privilege depends, and the question of malice are entirely separate considerations. Bruce Smith, K.C. I submit not. If the Court sees unquestionable signs of the existence of malice, they will not extend the shield of privilege to a slanderous statement volunteered by the defendants. There is ample evidence of malice. The fact |