INTRODUCTION
5.1 This chapter considers various reforms designed to reduce the incidence of vexatious litigation in defamation actions.1 These reforms are aimed at ensuring that defamation actions can restore reputation more effectively, and also minimising their restraint of freedom of speech.
5.2 The proposals discussed include a shorter limitation period for defamation claims, and giving courts a specific power to strike out defamation actions. The incidence and effectiveness of so-called “stop writs” is examined briefly. Another proposal discussed is encouraging the use of agreed statements of issues and witnesses’ statements in defamation actions.
A SHORTER LIMITATION PERIOD FOR DEFAMATION CLAIMS
5.3 Defamation actions should be heard and resolved quickly. One way of encouraging this is to shorten the time after publication in which actions can be brought.
The current limitation period in Australian jurisdictions
5.4 In most Australian jurisdictions, including New South Wales, the limitation period for defamation actions is six years.2 In the Northern Territory, it is three years.3 In Western Australia and South Australia, actions for slander have a limitation period of two years.4
5.5 This period runs from the date of accrual of the cause of action, which in defamation actions is the date of publication of the matter which is the subject of the complaint.
5.6 In Western Australia, libel actions against a newspaper or any person responsible for its publication must be brought within twelve months of that publication.5
The limitation period in overseas jurisdictions
England and Wales
5.7 The limitation period for most tort actions in England is six years. However in 1985 the limitation period for defamation claims was reduced to three years.6 The Lord Chancellor, Lord Mackay, has recently proposed that it should be reduced to one year, with the court having a discretion to extend it to a maximum of three years in appropriate cases.7
New Zealand
5.8 Defamation actions in New Zealand have a limitation period of two years, with a discretion granted to the court to extend it to a maximum of six years.8
Canada
5.9 In Alberta, British Columbia and New Brunswick, the limitation period for defamation is two years from publication. The same applies in Manitoba, Prince Edward Island and Saskatchewan, although actions for slander not actionable per se must be brought within two years of the date of occurrence of the special damage which is the gist of that action. In Newfoundland and Ontario an action for slander must be brought within two years after the words were spoken; libel actions must be brought within six years of publication. In Nova Scotia an action for slander must be brought within one year and an action for libel within six years after the cause of action arose.
5.10 The position is complicated by special provisions applying to newspapers and broadcasters. Some provinces provide that an action for any defamation published in a newspaper, or broadcast, must be commenced within six months after the publication came to the notice or knowledge of the person defamed. In Ontario and Newfoundland, the relevant period is three months.9
Arguments in favour of a shorter limitation period for defamation
5.11 Persons concerned at damage to reputation normally would be expected to pursue vigorously efforts to restore it. Memories fade. Journalists and their sources can be hard to trace after time has elapsed. Notes, tapes and other records are often retained only for short periods. The prospect of a defamation action can lead to self-censorship by writers and the stifling of a legitimate debate. Plaintiffs need not adduce proof of damage, and have a lighter onus to satisfy than in other torts (although this may change under proposals being considered by the Commission - see Chapter 2).
Arguments against a shorter limitation period for defamation
5.12 In all types of civil actions, defendants face difficulties if plaintiffs do not commence proceedings quickly. There is no reason to give special treatment to defamation defendants. Most defamation actions are brought quickly anyway. A recent study of New South Wales cases found that approximately 80% of matters were commenced within six months of publication; only 7.9% were commenced more than twelve months after publication.10 Delay in commencing is already a factor which is considered when assessing damages. Considerable time may be needed to realise and fully assess the extent of injury to the plaintiff’s reputation, and obtain legal advice. Attempts to settle without litigation may be handicapped if litigation must be commenced quickly. Applying a shorter limitation period in New South Wales alone will encourage forum shopping.
Summary
5.13 There appears to be a general trend in common law jurisdictions to provide for a shorter limitation period in defamation than in other tort actions. Free expression would be promoted by shortening the current six year limitation period in New South Wales. Given that most actions are commenced promptly anyway, it can be argued that few parties would be disadvantaged.
5.14 The Defamation Bill 1992 (NSW) amends the Limitation Act 1969 (NSW) to provide for a limitation period in defamation actions of six months from discovery of publication of the defamatory matter, subject to a maximum of three years from publication (cl 73 and Schedule 4).
5.15 If the time provided in the Bill is thought to be insufficient, then a period of one year from discovery of publication, with a maximum of three years from publication, seems a reasonable compromise.
"STOP WRITS"
5.16 This term is used to describe a defamation action commenced with the sole or dominant purpose of gagging further discussion of a particular subject. As a matter of law their power to do this is virtually non-existent, but they may have some practical effect on discussions, particularly if the defendant does not understand the law.
The limited effectiveness of stop writs
5.17 The idea that commencing a defamation action can “stop” the publication of material appears to be based on a misconception of the law of contempt of court. That law is concerned with balancing the public interest in the due administration of justice with the public interest in freedom of expression. It does not provide that once litigation has commenced, public discussion of the subject-matter of that litigation is prohibited.11 The crime of contempt of court is committed when material is published in circumstances where the clear tendency of the publication is likely, as a matter of practical reality, to interfere with the due course of justice.12 However, where the topic is of sufficient public importance, the public interest will favour free discussion of it over the possibility of prejudice to a litigant.13
5.18 A defamation suit commenced to restrain publication of further material by the defendant will usually be futile. An injunction to forbid such publication on the basis that it may prejudice the defamation action normally will be refused.14 Furthermore, if this is the sole or predominant purpose of commencing the action, it will be permanently stayed as an abuse of process. The possibility is even open to the defendant to sue the plaintiff in the civil tort of abuse of process.15
5.19 However, further publications may increase the risk of adverse consequences to the defendant in the trial of the defamation action. Repetition of defamatory material may provide some evidence of malice at the time of publication, and also aggravate damages (because it will amount to repetition of a wrong). More importantly, the defendant may have a perception of this risk, and so be intimidated into not publishing.
The prevalence of stop writs
5.20 Empirical research has not been able to establish the number of defamation suits commenced in order to gag further discussion. The Edgeworth and Newcity study found that 30.7% of the 435 suits they studied were neither formally settled nor prosecuted to trial (after a lapse of four years or more). Some of these could have been intended to act as stop writs. Many may have been simply allowed to lapse, or not prosecuted due to difficulties in meeting legal fees and costs or in obtaining evidence, or settled informally without the court having any record of the terms.16
5.21 The Sourdin study used a test of “dormancy”, defined to include cases in which no activity had been recorded on the file for a period exceeding ten months and the time for compliance with directions and consent orders had expired at least ten months previously. Of the 264 files examined in this way, approximately 42.5% were characterised as dormant. Again, it is not possible to conclude from this how many, if any, were intended to act as stop writs.17 Without knowing what the plaintiff’s motivation was, it is impossible to draw any conclusions as to the prevalence of stop writs.
The best solution to the perceived problem of stop writs
5.22 The best solution to any perceived chill on free expression is an understanding of the law, and the encouragement it offers to free discussion of matters of public interest. In 1987, the Australian Law Reform Commission noted that there are many benefits in giving journalists careful and thorough training in contempt law.18 This holds true today.
EXPRESS POWERS TO STRIKE OUT DEFAMATION ACTIONS
5.23 Despite the extremely limited effectiveness of “stop writs”, the Defamation Bill 1992 contains a “want of prosecution” provision designed to eradicate their use.19 Clause 14 gives the court in which defamation proceedings are pending an express power to strike out the proceedings if it considers that the plaintiff had failed to prosecute them for a year, or had shown disregard for or an unwillingness to comply promptly with an interlocutory order.
The court’s current powers to strike out actions
5.24 Courts have an inherent power to strike out proceedings which are an abuse of process. The defendant must show that the plaintiff, in starting and continuing the action, had the ulterior purpose of seeking a collateral advantage beyond what the law offered as a remedy for the wrong alleged, and that, but for this ulterior purpose, the plaintiff would not have started proceedings at all.20
5.25 In addition, court rules provide a power to stay or dismiss such proceedings, such as in Part 13 Rule 5 of the Supreme Court Rules 1970 (NSW). A power to strike out pleadings which are an abuse of process is conferred by Part 15 Rule 26. Again, the party seeking these orders must satisfy a very stringent test. A defendant alleging that the plaintiff has no cause of action must show that the plaintiff’s claim is so obviously untenable that it cannot succeed, or that it is manifestly unarguable.21
Is an express power to strike out defamation proceedings desirable?
5.26 The Legislation Committee on the Defamation Bill 1992 supported giving courts an express power to strike out defamation proceedings, as in cl 14 of the Bill. This was because “the Court of Appeal has interpreted the existing powers of the court in such a way as virtually to emasculate them.”22
5.27 One problem with cl 14 is that it uses several vague terms: “failed to prosecute”, “shown disregard”, “unwillingness to comply promptly”. If the interpretation of these terms is to remain in the court’s discretion, this express power may well be interpreted in the same way as the court’s present powers.
5.28 It would be easy for a plaintiff to take at least one step every twelve months and so avoid having the claim struck out under cl 14(a). This means that this provision would not effectively deal with “stop writs”.
5.29 Clause 14(b) would effectively take care of plaintiffs who have no real intention of prosecuting the claim to trial. It would also make “every timetable or direction a peremptory order, which is outrageous, and only against the plaintiff, which is iniquitous.”23 This provision, if it is retained, should be extended to defendants. It is inequitable that a plaintiff would have to make a special application for a peremptory order against a dilatory defendant.
5.30 The Defamation List is already conducted in such a way that a party who really wants to get the action to trial can do so. If both sides are willing to let the action sleep in the court files, a provision such as cl 14 will have little effect. The procedural and remedial reforms proposed in this Discussion Paper should effectively ensure that defamation suits are disposed of promptly. For example, if juries are not used in defamation trials, the summary judgment procedure under Part 13 of the Supreme Court Rules could be more widely used. Separate trials under Part 31, for the purpose of deciding on the capacity of matter to convey defamatory imputations, should not be necessary. The availability of defences should be more easily decided.24
5.31 If a provision such as cl 14 is nevertheless desired, it would be better to put it in the Supreme Court Rules. It should apply to both parties. If it is not to apply to all directions and orders, some criteria as to when it should be used are required.
FILING AGREED STATEMENTS OF ISSUES AND WITNESSES' STATEMENTS
5.32 It has been suggested that delays in defamation litigation would be further reduced if some of the streamlining procedures used in the Commercial Division could be adopted. Statements setting out the facts and issues could be exchanged, followed by an exchange of witnesses’ statements. It may then be possible to file an agreed statement of issues before trial.25
5.33 Filing statements of facts and issues in the Commercial Division is designed to eliminate the necessity for pleadings, at least in some cases.26 It may be harder to eliminate formal pleadings in the Defamation List. This is because a plaintiff’s cause of action under the Defamation Act 1974 (NSW) is the imputation pleaded by the plaintiff as arising from the matter complained of.27 These imputations must be pleaded with precision so as to define the issues and inform the defendant of the case it must meet.
5.34 However, filing of witnesses’ statements is a procedure which has been used in the Defamation List,28 and could be used more often. This could also apply to the filing of agreed statements of issues before trial.
5.35 The Commission welcomes submissions on these proposals.
ISSUES ARISING IN CHAPTER 5 - OTHER PROCEDURAL ISSUES
Limitation Period
1. Should the limitation period for commencing a defamation action be shortened to one year from discovery of publication, with a maximum of three years from publication?
Stop Writs
2. Is there an effective way to correct the misconception that commencement of a defamation action has some legal power to gag further discussion of the subject-matter of the action?
Express powers to strike out defamation actions
3. Is there a need to give courts an express power to strike out defamation actions if either party delays excessively?
4. If so, what should be defined as an excessive delay?
5. Should every direction made in defamation litigation be treated as a peremptory order (so that the action or the defence will be struck out if the order is not complied with promptly)?
Filing agreed statements of issues and witnesses’ statements
6. Could greater use be made of agreed statements of issues and exchange of witnesses’ statements in defamation litigation?
FOOTNOTES
1. Young Lawyers Section, NSW Law Society argues that “[t]here is probably more vexatious litigation in the field of defamation than in many other areas of the law.” Submission to NSW Legislation Committee (31 January 1992) at 6-7.
2. Limitation Act 1969 (NSW); Limitation of Actions Act 1974 (Qld); Limitation of Actions Act 1936 (SA); Limitation Act 1974 (Tas); Limitation of Actions Act 1958 (Vic); Limitation Act 1935 (WA); Limitation Act 1985 (ACT).
3. Limitation Act 1981 (NT).
4. Limitation Act 1935 (WA), s 38(1)(a)(ii) (applies to slander actionable per se); Limitation of Actions Act 1936 (SA), s 37. Victoria also retains the distinction between libel and slander, but has no special limitation period for slander.
5. The Newspaper Libel and Registration Act 1884 Amendment Act 1888 (WA), s 5.
6. Limitation Act 1980 (UK), s 4A, inserted by the Administration of Justice Act 1985 (UK), s 57(2).
7. J McLeod “Proposals could close down ‘libel Las Vegas’” , Guardian Gazette, 6 January 1993, at 6.
8. Limitation Act 1950 (NZ), s 4(6A) and (6B), inserted by the Defamation Act 1992 (NZ), s 55.
9. R Brown The Law of Defamation in Canada (Carswell, Toronto 1987), Vol 2 at 794-795, 805.
10. T Sourdin Defamation Study (unpublished paper, University of New South Wales, 1990) at 10-14. These figures are based on a sample size of 264 actions commenced between 1 January 1987 and 31 December 1988.
11. Wallersteiner v Moir [1974] 1 WLR 991 at 1004-1005 per Lord Denning MR.
12. Hinch v Attorney-General of Victoria (1987) 164 CLR 15; Attorney General for NSW v TCN Channel Nine Pty Ltd (1990) 20 NSWLR 368.
13. Ex parte Bread Manufacturers Ltd; Re Truth & Sportsman Ltd (1937) SR(NSW) 242.
14. National Mutual Life Association of Australasia Ltd v GTV Corporation Pty Ltd [1989] VR 747 at 759-761 per Ormiston J.
15. M J R Clarke “No comment - it’s sub judice”, paper presented at the seminar Latest Developments in Media Law (Sydney, 4 December 1992) at 4-5.
16. B Edgeworth and M Newcity “Politicians, defamation law and the ‘public figure’ defence” (1992) 10 Law in Context 39 at 51.
17. Sourdin at 17-22.
18. Australia. Law Reform Commission Contempt (Report 35, 1987), at para 265.
19. Attorneys General of Queensland, New South Wales and Victoria Reform of Defamation Laws - Discussion Paper (No 2) (January 1991) at 58, 59.
20. Goldsmith v Sperrings Ltd [1977] 2 All ER 566.
21. General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128-130; Jones v Amalgamated Television Services Pty Ltd (1991) 23 NSWLR 364 at 368.
22. Legislation Committee on the Defamation Bill 1992, Report on the Defamation Bill 1992 (Legislative Assembly, Parliament of New South Wales, October 1992) at 31.
23. Young Lawyers Submission to NSW Legislation Committee at 5.
24. Compare Rajski v Carson (1986) 4 NSWLR 735 (Hunt J), (1988) 15 NSWLR 84 (Court of Appeal), where the existence of a defence of absolute privilege turned on disputed questions of fact which had to be resolved by a jury: see Chapter 7 footnote 31.
25. P T George “Congruency: unravelling the defamation action” (1990) 6 Australian Bar Review 124; Law Council of Australia Submission to NSW Legislation Committee (30 January 1992) at 39.
26. Supreme Court, New South Wales, Practice Note 39 (12 November 1986).
27. See Chapter 4, paras 4.33-4.44.
28. See, for example, Gene Lobel Photo Art & Sound (Cremorne) Pty Ltd v MacIntosh (Supreme Court, NSW, CLD 12860/90, directions made by Badgery-Parker J on 27 May 1993).
