A report of court proceedings is not fair and accurate if it omits material explanations. The defense of fair comment requires that the comment be separable from the report and based on truly stated facts; otherwise, the defense fails.

Lord Thankerton.-

The appellants seek to have a new trial in an action for libel tried in the Supreme Court of New South Wales before Halse Rogers, J., and a jury, in which a verdict was given in the respondent's favour for £3,000 damages on 16th September 1930. The Full Court of the Supreme Court of New South Wales, on 6th November 1930, declined to set aside the verdict, and the present appeal is taken against that judgment. The libel was said to be contained in an article published by the appellants in the issue of their newspaper “Truth'' of 3rd March 1929,.which referred to an action heard on 28th February and 1st March 1929, in which the respondent was plaintiff and one Verrender was defendant in the Small Debts Court in Sydney before Judge Camphin.

The issues submitted to the jury in the present action stated the damages claimed as £5,000 and the appellants' pleas in defence as (1) a general plea of not guilty, and (2) the statutory plea of publication in good faith for the information of the public of a fair and accurate report of the public proceedings of a Court of Justice (Defamation Act, No. 32 of 1912, S. 29). It may be noted that truth is by itself no defence to an action for libel according to the law of New South Wales. The appellants seek to have the verdict set aside on the following grounds: (1) As regards the issue of libel, that the trial Judge misdirected the jury (a) by failing to leave the question of libel or no libel to the jury, (b) in the manner in which he left the question of a fair and accurate report to them, and (c) in declining to submit the question of fair comment to the jury concurrently with the statutory plea of fair and accurate report; and (2) as regards damages, that the misdirection as to fair comment involved also a misdirection as to damages, and that the damages awarded were excessive. As regards libel or no libel, their Lordships agree with the view of the Full Court that the learned trial Judge did leave the matter to the jury, though he expressed to them his own opinion, which he was clearly entitled to do.

As regards the learned Judge's directions on the question of fair and accurate report, counsel for the appellants criticized these in various respects, but while their Lordships are not inclined to accept these criticizms as material, it is unnecessary to deal with them, for their Lordships are of opinion that no jury could reasonably find that the report was a fair and accurate one. The article consists mainly of a report of questions put to the respondent in cross-examination by the solicitor of the defendant Verrender and the respondent's answers thereto. The action was a simple one for recovery of moneys which Verrender was said to have received while acting as the respondent's agent for recovery of professional accounts owing to him. The defendant's solicitor was allowed to cross-examine the respondent at great length with suggestions of blackmail and breach of professional confidence arising out of information given by the respondent to his agent to assist him in recovery of the debts. That line of examination appears to have been clearly irrelevant to the only question in issue, but, be that as it may, it is clear on the evidence in the present action that the article here complained of does not report the whole of the respondent's answers to the questions in cross-examination, but omits some of the explanations given by him. It may be that these explanations do not seem very satisfactory, but the respondent was entitled to have them included in any report, and a report which omits such explanations cannot be a fair and accurate report. Accordingly there is no sufficient ground for a new trial in this respect, even assuming that appellants had shown that there was any misdirection.

In the next place, as to the plea of fair comment the following passage may be taken from the summing up:

“Mr. Windeyer has asked me to say some thing about fair comment, but in my opinion there