DAMAGES
5. Generally, the views expressed to the Commission on the present reference have come from those who wish to see a further degree of protection accorded to the various aspects of freedom of speech, and who correspondingly complain of the oppressiveness of the extent of protection at present accorded to plaintiffs. This is evidently typical of inquiries such as ours and it has been suggested that in assessing the state of public feeling allowance should be made for the fact that by the nature of the case plaintiffs in actions for defamation are less able to organize to express a point of view than the press who are regularly defendants to such proceedings (R.F.V. Heuston, Irish Jurist (1966) 269). Yet those complaining include, as well as the press, organizations who have complained only because of their interest in cultural and political questions and it does not seem that even interested views should be discounted insofar as they can be validly related to accepted objectives of the law or to principles by which the community ordinarily governs its affairs.
6. The most general complaint is related to the size of the damage awards and the effects of these in the light of the growing number of cases, stressed by both metropolitan and country newspapers. Such complaints are not confined to the local scene. The joint working party of the British section of the International Commission of jurists and the International Press Institute, under the chairmanship of Lord Shawcross reported in 1965 "considerable evidence that awards of damages in libel actions in recent years have been wholly disproportionate to what might be considered proper compensation for the aggrieved parties" (Report p. 24). Overseas dissatisfied groups have cited particularly the awards of over £200,000 in England for the libels discussed in Lewis v. The Daily Telegraph Ltd. ((1964) A.C. 234) and the awards totalling a million dollars granted by Alabama juries over the advertisements which were the subject of suit in New York Times v. Sullivan ((1964) 376 U.S. 254) more recently outstripped by the award of three million dollars exemplary damages in Curtis Publishing Co. v. Butts ((1967) 388 U.S. 130). In both these cases the awards were upset on appeal and recently similar action has been necessary to stem extravagant awards given in this State, as in Australian Consolidated Press Ltd. v. Uren ((1966) 40 A.L.J.R. 142). A Judge of Appeal has referred to "the abnormally high verdicts which have in recent times been found against newspapers by juries" and has described them as "a threat to true freedom of speech" (Clines v. Australian Consolidated Press Ltd. (1966) 84 W.N. (Pt. 2) 86 (C. of A.) per Jacobs, J.A, at 105). A Justice of the High Court of Australia described one of the upset awards as "more than in very many cases is awarded for serious and permanent physical injuries that greatly hamper a man in his activities and affect his livelihood" (Australian Consolidated Press Ltd. v. Uren (1966) 40 A.L.J.R. 142 per Windeyer, J. at 152).
7. Except possibly in respect of number and degree, there is nothing novel in such comments, which have been made for at least fifty years. A century ago, by contrast, newspaper interests were apparently mainly concerned to urge on legislatures the suppression of criminal proceedings for libel by private prosecutors. It was in this context that an English Parliamentary Committee was pressed by a newspaper representative with the argument that if it were understood that criminal proceedings were impossible juries in civil proceedings "would then, instead of giving as they frequently do, merely nominal damages, give substantial damages" (Evidence Before the Select Committee on Libel of the English House of Commons, 1879, p. 7). Restrictive legislative action against criminal proceedings was accordingly taken (Newspaper Libel and Registration Act, 1881, s. 3, repealed and replaced by Law of Libel Amendment Act, 1888, s. 8, adopted and extended in New South Wales by Defamation (Amendment) Act, 1909, s. 4, now replaced by Defamation Act, 1958, s. 33), and by 1913 the prediction was borne out by the comment of an English judge that actions of libel were overdone and there were too many in the courts. His lordship added that "there is no country in the world where there are so many or where such large and excessive damages are awarded" (Greenlands Ltd. v. Wilmshurst and the London Association for Protection of Trade. (1913) 3 K.B. 507 per Bray, J. at 561). In 1939 Lord Justice Mackinnon was to comment on the greater liberality of compensation for a soiled reputation than for a compound fracture (Groom v. Crocker (1939) 1 K.B. 195 at 231), and in 1948 Lord Porter's committee on the Law of Defamation reported that some cases of damages drawn to its attention appeared to be clearly excessive, while experience was that judges acting under the Emergency Rules of Court gave substantially, less by way of damages than juries (Cmd. 7536 October 1948, p. 37).
8. Various particular undesirable effects of the high level of damages awards, enhanced by the high costs claimed to attend the defence of these actions, have been represented to us. It is said that profit-making actions and even "blackmailing" ventures to force settlements upon pain of incurring crippling costs and damages are encouraged. On this subject also parallel evidence was before Lord Shawcross' committee who found that it appeared to be quite common for claimants to prefer to take a larger sum in money to a smaller sum accompanied by a statement in court (Report, p. 45). This complaint, again, is by no means new and was made to Lord Porter's committee in 1948, who declined, however, to take action on the ground that the minority of profit seeking plaintiffs had to be endured to keep the courts open to honest and reputable people (Cmd. 7536 October, 1948, pp. 46-47).
9. A second alleged undesirable effect of high damages and costs was put to us especially by country press interests. The risks of crippling expense are said to be a factor driving newspapers into fewer and greater concentrations of capital, resulting in reduced competition of presses and ideas. It is claimed that costs and damages in one action absorbed a third of the capital of a small newspaper, all arising from a statement copied in good faith from a Sydney newspaper. It is a matter of record that following the victory of a plaintiff on appeal to the Privy Council (Jones v. Skelton (1963) 1 W.L.R. 1362) the defendant newspaper proprietor's estate was sequestrated (Jones v. Skelton (1966) 85 W.N. (Pt. 1) 25) .The alleged effect of damages and costs in contributing to the concentration of press capital is of some interest in relation to the judicial suggestion that large awards of damages are possibly induced by juries' fear of tyrannical exercise of power by large newspaper interests (Clines v. Australian Consolidated Press Ltd. (1966) 84 W.N. (Pt. 2) 86 (C. of A.) per Jacobs, J.A. at 105).
10. A further undesirable effect of high awards and costs is claimed to be the suppression of discussion of matters of importance through the intimidation of newspapers caused by the contemplation of the possibility of actions. This complaint is again matched overseas where Lord Shawcross' committee found particular evidence of an inhibiting effect of the awards involved in Lewis v. Daily Telegraph Ltd. to which we have already referred. An independent though allied complaint is that the law of contempt has an unnecessarily restrictive effect when proceedings are in prospect or instituted, and that "stop writs" are deliberately instituted for suppression of discussion, especially for political or financial promotional reasons, where there is no serious intention of attempting to carry them through to a conclusion.
11. A group of complaints relates to the effects of the possibility of award of aggravated and exemplary damages. One such complaint attacks the whole principle of exemplary damages, it being put to us that it is unfair that the injured party should have an interest in the severity of the penalty inflicted for the correction of the wrongdoer and not aimed at compensation of the injured party. This is a claim for their abolition; but the view has also been urged upon us that fairness is on the side of the view which the High Court of Australia declined to accept (in Uren v. John Fairfax & Son Pty. Ltd (1966) 40 A.L.J.R. 124 upheld by the Privy Council in the related case of Australian Consolidated Press Ltd. v. Uren (1967) 41 A.L.J.R. 66) as the Australian interpretation of the common law, and on the side of the position reached by the House of Lords as the English interpretation of the common law (in Rookes v. Barnard (1964) A.C. 1129) namely that exemplary damages are justified only as an answer to governmental oppression or to defamation designed to leave the wrongdoer with a profit after he has paid compensatory damages. The dissatisfaction with the previous English law which led to the restrictions imposed in Rookes v. Barnard is similar in source to that which has led to representations to us in favour of abolition. "The power to award exemplary damages," says Lord Devlin, "constitutes a weapon that, while it can be used in defence of liberty, can also be used against liberty" (Rookes v. Barnard (1964) A.C. 1129 at 1227). He adds that awards that juries have made in the past seem to him to amount to greater punishment than would be likely to be incurred if the conduct were criminal, and moreover a punishment without the safeguard which the criminal law gives to an offender (Ibid.).
12. The rule whereby damages may be aggravated in amount by reason of the behaviour of the defendant in the conduct of his defence was represented to us as contradictory of fundamental principles of justice and fairness in relation to a person's rights to be heard by a court. It was wrong, the claim went, that a party who bears the onus of satisfying the court on so many issues should be subjected to punishment if the court thinks the jury entitled to hold his litigious behaviour unjustifiable, An allied complaint made to Lord Porter's committee was that the rule permitting an inference of malice to be drawn from the defendant's conduct of the trial, where malice is relevant to liability, prejudices a fair trial. While recognizing that there is some justice in this, the committee declined to make any recommendation on this subject, particularly since it felt that a recommendation it did make, to permit the defendant to blacken the plaintiff's character in mitigation of damages, necessitated some form of sanction against the abuse of this power. There is no such power in New South Wales and the legislature declined to introduce it in England despite the recommendation just mentioned, but in both countries the defendant continues to defend himself upon pain of inflating the damages if he oversteps proper boundaries. The privilege to defend himself is not, in this sense, "absolute" , in the manner that privileges of participants in court proceedings generally are.
13. It was put to us that the law is "defeatist" in the manner it proceeds in assessing compensatory, as distinct from aggravated or exemplary, damages. This is a criticism of the common law maxim that compensatory damages are "at large" aiming at a broad estimate of elements summarised by the Chief Justice of New South Wales as pecuniary loss, actual and anticipated, social disadvantage, natural injury to feelings, grief and distress (Uren v. John Fairfax & Sons Pty Ltd (1965) 83 W.N. (Pt. 2) 183 (F.C.) per Herron, C.J. at 203), "Compensation," comments a High Court Justice, "is here a solatium rather than a monetary recompense for harm measurable in money" (Uren v. John Fairfax & Sons Pty. Ltd. (1966) 40 A.L.J.R. 124 per Windeyer, J. at 137). A similar but not identical complaint made to us pointed to the alleged unfairness of awarding actual damages for defamation when defamation was defined in the Defamation Act, 1958, in terms of mere likelihood of injury to reputation, or to profession or trade, or of ostracism.
14. A final, more specialised complaint made to us in the field of assessment of damages called our attention to the troublesomeness in operation of the provision by which the defendant may give evidence in mitigation of damages of other actions and recoveries by the plaintiff in respect of similar defamatory material (Defamation Act, 1958, s. 24). This is the section which a New South Wales judge has described as setting the jury an almost impossible problem (Uren v. John Fairfax Pty. Ltd. (1965) 83 W.N. (Pt. 2) 183 (F.C.)) and a comment in the High Court carries the implied suggestion that, contrary to the intent of the section, a defendant who cites another recovery may find that the jury, treats the-damages awarded against that other simply as a precedent for the damages to be awarded against him (See the suggestion of Windeyer, J. in Uren v. John Fairfax & Sons Pty. Ltd. (1966) 40 A.L.J.R. 124 at 139 that it is probably desirable that the judge explain to the jury that the evidence is not admitted for the purpose of fixing a scale of damages).
SUBSTANTIVE LAW
15. Complaints about the substantive law of defamation relate either to the elements in the plaintiff's cause of action or to the defences which may be raised. The plaintiff's case consists of a showing of publication of defamatory matter and the first set of objections put to us in this connection make a point of the harshness of the rule whereby it is sufficient for the plaintiff to show the publication without any necessity of proving that the defendant was in fault in either intending to defame the plaintiff or in failing to realise that the publication might turn out to be defamatory of the plaintiff. It is claimed that misinformation which is reasonably believed and apparently harmless leads newspapers into damages and costs, and there can be no question but that the state of the law allows such things to occur. Similar representations made to Lord Porter's committee failed to convince that committee that the principles of liability should be altered, since it was felt that the institution of a rule whereby the right to damages depended on a showing of fault would be unfair to those plaintiffs who suffered serious loss of reputation through a publisher's mistake, however guiltless, and needed a means of vindication of their reputations (Cmd. 7536, p. 16). An associated objection to the present law which was made to us was that apparently trivial errors and accidents where the fault is slight cost large sums. The system at present provided for dealing with defamatory matter published without ill will and without gross negligence by permitting a defence of apology coupled where the defendant desires by a payment into court by way of amends (Defamation Act, 1958, s. 22) was criticised to us for its practical difficulties. Both Lord Porter's (Cmd. 7536 pp. 17-18) and Lord Shawcross' (Report p. 39) committees made suggestions for amendment of the English law related to the law of apology on which our own is based.
16. The most general representation put to us regarding any aspect of the substantive law was that the provision whereby a plaintiff may sue in respect of imputations concerning "any members of his family, living or dead" affecting the reputation or livelihood of the plaintiff (Defamation Act, 1958, s.5),should be repealed. Complainants included, as well as individuals, the Australian Broadcasting Commission, the Australian Association for Cultural Freedom, The Royal Australian Historical Society, The Australian Society of Authors, The Society of Women Writers, and newspaper interests, and newspaper publicity at the time of the passage of the 1958 Act and since testifies to the uneasiness of a number of sections of the community about this matter. All the complainants refer to the inhibiting effect upon historical research of the uncertainty created by differing views about the effect, or lack of effect, of this provision. Whatever justification, or lack of it, these fears may have in law we are left in no doubt about their existence.
17. By contrast it was also represented to us that in one respect the ambit of the definition of defamatory meaning was too narrow. Apart from imputations concerning a member of the plaintiff's family, an imputation under the present Act must, to be actionable, concern the plaintiff individually. Therefore the Act, like the common law, does not cover defamation of a group which does not by implication defame individual members. The only suggestion made to us on this occasional for strengthening of the protection of groups was on behalf of a body, the spokesman of which described it as a minute religious group. But we believe it would be wrong to infer that there is less concern about this matter among minorities than at times when incidents have occurred to provoke their dissatisfaction with the state of the law. Within the last twenty years problems within this area have been drawn to the attention of the Government by both Catholic and Jewish interests. Lord Porter's committee was presented with a "considerable body of evidence" upon this subject as to which the report says that "the most widespread and deplorable examples of group defamation at the date at which we commenced our sittings were directed against the Jews; but complaints were also made to us of unfounded vilification of particular trades" (Cmd. 7536, 1943, p. 11). The existence of continuing sources of dissatisfaction in Britain is attested by the creation in 1965 of an offence consisting in certain types of publication "with intent to stir up hatred against any section of the public in Great Britain distinguished by colour, race, or ethnic or national origins" (Race Relations Act, 1965 (c. 74) s. 6).
18. A number of criticisms were addressed to us concerning the scope of the defences available to an action for defamation. These were either directed generally to the manner in which the Defamation Act, 1958 deals with the whole matter of defences or to the scope of freedom permitted for particular kinds of publications - privileged reports, fair comments, statements justified as true and for the public benefit, publications made on protected (or privileged) occasions. We proceed to indicate the main grounds expressed for dissatisfaction in regard to each matter.
19. Sir Samuel Griffith claimed that the effect of the legislation now comprised in substance in the Defamation Act, 1958 would be to enable people to see what they could and could not say (57 Queensland Parliamentary Debates (1889) 734-735) and the detailed specification of circumstances when publication of defamatory material was permissible was the major means adopted to this end. For all this, one newspaper complained to us generally that the present law is too difficult to explain to journalists, and it is not only the man in the street, to whom Sir Samuel Griffith sought to clarify matters, who has asserted the existence of problems. It was in a case concerned with the scope of a number of protective provisions in the Act that the President of the Court of Appeal, after noting that the parties had been three times before the court with interlocutory applications and yet the hearing might still be a long way off, criticised the working of the Act on the ground that it seemed to attract. technical difficulties. These, he suggested, derived largely from the history of the legislation and the effects of the changing common law on a code which in some respects might be likened to a code enacted as long ago as 1860 (Clines v. Australian Consolidated Press Ltd. (1966) 84 W.N. (Pt. 2) 86 (C. of A.), per Wallace, P. at 90). Sir Gordon was referring to the fact that Sir Samuel had drawn on the formulation of defences in the Indian Penal Code, 1860, attributed to Lord Macaulay with revisions by Sir Barnes Peacock (See Wallace, P.'s earlier remarks in Orr v. Isles (1964) 82 W.N. (Pt. 1) 103). Another member of the Court of Appeal has said that the spate of defamation actions since the Act was passed has proved that the Act left ample scope for debate upon many questions (Address by Walsh, J.A. to the Council for Advanced Legal Studies of the New South Wales Bar Association, 1965).
20. Independently of the obscurity which is claimed to arise from the lack of relationship of the substance and language of the defences in the Defamation Act to the current common law upon which it makes its impact, private judicial criticism has been made to us of the inflexibility inevitably attendant on an attempt to codify the defences available, and it has been said in the High Court of Australia concerning the section of the Act (s. 17) enumerating the circumstances in which qualified protection for defamatory statements is to exist, that it has stultified development by its rigid definitions (Australian Consolidated Press Ltd. v. Uren (1966) 40 A.L.J.R. 142).
21. More specific criticisms in this field have been directed in the first place to those sections of the Defamation Act, 1958 dealing with protected reports (ss. 11-14). Complaint is Made of the allegedly unnecessary restriction of absolute privilege for official reports to those resulting from inquiries authorised by Statute (s.13). There is complaint about the restriction of the right to report the statements of Parliamentarians (under. s. 14(a)) to those which are part of the proceedings of Parliament, while one newspaper suggests that there should be an absolute privilege for reporting the statements of any authority on a matter of public interest. Several organizations also advanced the claim that the protection of s. 14(1)(a) should not be confined to proceedings in Australian Parliaments, but should be extended to proceedings in some or all of Commonwealth and foreign parliaments, as well as proceedings in international bodies. Similar criticisms have been made of the local restrictions (as a result of s. 14(1)(d) and the common law) on the courts of justice whose proceedings may be reported under privilege and claim made for privileged reporting of the proceedings of Commonwealth and foreign courts. A second objection made to us of the law concerning reports of court proceedings was the restriction of reporting by and broadcasting and television stations to "contemporaneous" publication (s. 14(3)). A propos of the withholding of protection from reports of matter of which. publication is forbidden, one newspaper would like to see the conditions under which publication is prohibited made uniform throughout the Commonwealth of Australia. Similar representations for extension of privileged reporting of official or judicial material from other countries were made both to Lord Porter's (Cmd. 7536, (1948) p. 27) and Lord Shawcross' (Report (1965) p. 40) committees. Other representations relate to later paragraphs of s. 14(1) of the Act. Despite the existence of provision for privileged reporting of notices or reports issued by Government offices, departments or officers, including the police, with the consent or at the request of the office, etc., (s. 14(1)(f), clarification of the law relating to publishing notices about persons suspected of crimes is sought. Despite the existence of protection for reports of proceedings of local authorities where they relate to matters of public concern, (s. 14(1)(h)) complaint is made of the oppressiveness of proceedings arising out of these circumstances. A newspaper interest complains that because of the principle in Chapman v. Lord Ellesmere ((1932) 2 K.B. 431) newspapers are insufficiently protected in reporting to the general public that persons have been warned off the turf despite the existence of the statutory privilege to report appeals to the committee of the Australian Jockey Club (s. 14(1)(ii)). It is also objected that the definition of the public meetings protected under the legislation (s. 14(1)(j)) is unfair insofar as it makes the reporter responsible for the good faith of those responsible for the meeting.
22. Some objections were made to the present state of the law permitting fair comment to be made, even if defamatory, on certain matters of public interest (Defamation Act, 1958, s. 15). Authors complained to us that the latitude allowed to criticise authors in the course of criticising their works was unjustifiable. While not objecting to the rule that a fair comment might be made "respecting any published book or other literary production" they did find objectionable the extension of this right to comments "respecting the character of the author, so far as his character appears by the book or representation". Other objections were of a more general character. It was complained that the present law was too stringent in its insistence that for comments to be protected the facts on which they were based must be strictly true. It was urged that New South Wales should adopt the relaxing provision of the English legislation (Defamation Act, 1952, s. 6), passed in response to Lord Porter's committee's acceptance of similar criticisms of the previous English law (Cmd. 7536, p. 22), whereby the comment was rendered permissible if it was fair having regard to such of the facts alleged or referred to in the words complained of as were proved. Finally, it was urged, in effect, that where the facts on which comment is based are defamatory it should only be necessary to show that they are true in order to defend both the facts and the comment based on them. It was asked that any impression that it might be legally necessary to prove that the facts were published for the public benefit as well as being true should be removed.
23. In this State truth alone is no excuse for the publication of defamatory fact since a plea of justification requires also a showing that it was for the public benefit that the publication complained of should be made. The view that truth alone should be a defence is held by at least one Supreme Court judge and was put to us both by newspaper interests and historians. However, a majority of those associated with the submission from the Australian Association for Cultural Freedom considered that the public benefit requirement should be retained. A number of representations concerned the stringency with which it was claimed the requirement of a showing of truth was insisted on. It was urged that the English relaxing provision (Defamation Act, 1952, s. 5) adopted as a result of Lord Porter's committee's acceptance of this criticism (Cmd. 7536 (1948) p. 21), or the drafting variant in the Tasmanian Act (Defamation Act, 1957, s. 18) should be adopted here. Both provide for the defence to succeed where the plaintiff has sued in respect of words containing two or more distinct charges, provided that the reputation of the plaintiff is not materially injured by any unproven charge having regard to the truth of the proven charges. We observe, however, that Lord Shawcross' committee is dissatisfied with this type of provision (Report, 1965, pp. 30, 37) for experience has shown that the plaintiff can avoid its incidence by declining to sue in respect of the defamatory parts of the defendant's publication which perhaps can be proved and confining his action to such part as cannot (Plato Films v. Speidel (1961) A.C. 1090 and the comments of R.F. Heuston, Irish Jurist (1966) 257)). They therefore recommend that truth should be sufficiently made out if the publication as a whole - litigated and not litigated - is proved to the extent that the unproven parts do not materially make the matter worse for the plaintiff's reputation.
24. One newspaper interest represented to us that evidence of truth should be admissible in mitigation of damages even where the defendant failed to establish all the elements of justification as a substantive defence.
25. A number of criticisms were directed at the circumstances under which the present law accords "qualified protection" or "qualified privilege" to certain classes of defamatory statements, the protection or privilege being qualified in the sense that it exists only if the publication was in good faith (s. 17). These criticisms attacked variously the general definition of good faith in the Act, the terms in which the Act describes a number of the classes of statement protected, and the absence from the Act of certain kinds of statement which it is argued should receive protection.
26. The elements of publication in good faith as laid down by the Act are (1) that the matter published should be relevant to the matters the existence of which may excuse the publication in good faith of defamatory matter; (2) that the manner and extent of the publication do not exceed what is reasonably sufficient for the occasion; (3) that the person by whom it is made is not actuated by ill-will to the person defamed, or by any other improper motive and does not believe the defamatory matter to be untrue (Defamation Act, 1958, s. 17). Each of these requirements has attracted a share of complaints.
27. Of the requirement of relevance a senior member of the Bar has said that this provision is superfluous since the question raised is really the question whether the particular publication falls within a particular class of statements protected, which must have been decided before the question of good faith is reached. The same counsel makes the connected point, on the assumption that the provision means that the whole of the publication must be shown to be relevant to the occasion on the issue of good faith, that this would be prejudicial to the defendant where some part of the statement might be defensible on a ground independent of the privilege claimed under the section of the Act for another part (T.E.F. Hughes, Q.C. , in an address to the Council for Advanced Legal Studies of the New South Wales Bar Association, "Malice in Relation to Privilege and Damages in the Law of Defamation"). Counsel would like to see the provision omitted or altered to overcome the difficulty just mentioned. He further argues that the statutory definition reduces flexibility. In the same vein, a newspaper interest would prefer to see such matters as relevance reduced to the status of evidence. of good faith rather than stipulated, as now, as rigid preconditions for its existence. A judge of Appeal has made the comment that the reference to relevance in the Act in the provision defining good faith, coupled with the decisions which show that "relevance" can play a part in determining the prior question of privileged occasion "creates a difficulty" (Justin v. Associated Newspapers Ltd. (1966) 86 W.N. (Pt. 1) 17 per Walsh, J.A. at 36).
28. The same possibility of a double bearing on the existence of a privileged occasion and on the question of good faith exists in the requirement that there should be no excess in the manner and form of publication (See e.g., the reference of Wallace, J., as he then was, in Orr v. Isles (1964) 82 W.N. (Pt. 1) 103 at 111). Apart, however, from any uncertainty that arises out of the possibility that the draftsman intended to relate it to good faith only, complaint is made by newspapers with wide circulations that the attention paid to this element creates a serious problem for them in restricting what they are able safely to publish.
29. The third requirement in good faith, that there should be no ill will, improper motive, or belief in the untruth of the defamatory matter, attracted little direct comment on its substantive law aspects. Our attention was, however, called by interested persons to the whole of the matter in New York Times v. Sullivan ((1964) 376 U.S. 254). In this case Associate Justices Black and Douglas comment on "malice", a rather narrower conception in the particular area of American law of qualified privilege with which they were concerned than the notion of good faith now under discussion. Even as defined by the court, (See infra para. 32) they say, it is an elusive, abstract concept, hard to prove and hard to disprove. In their opinion "the requirement that malice be proved provides at best an evanescent protection for the right critically to discuss public affairs". These comments were made in the course of a case where Justices Black and Douglas were satisfied that the feelings of the jury were so inflamed on a racial issue that even if they had been properly directed on the question of malice they would not have hesitated to find it proved and to award the same huge damages as they did improperly directed.
30. Of those classes of publications which the Act enumerates as entitled to qualified protection, the one which has drawn the most fire is that comprising publications "for the protection of the interests of the person making the publication, or of some other person, or for the public good" (s. 17(d)). The expression "Public good" is new to the defamation law of New South Wales, and complaint is made of its obscurity, the narrowness with which it is alleged it is being interpreted, and generally the ineffectiveness of the provision in practice. A newspaper interest would like to see the phrase "public benefit" for a hundred years a familiar phrase in the civil law of defamation in New South Wales because of the existence of the defence of truth and public benefit, substituted. A Judge of Appeal has criticised the most elaborate High Court analysis of the provision (that of Evatt, J. in Telegraph Newspaper Co. Ltd. v. Bedford (1934) 50 C.L.R. 632) as failing to apply the proper principles applicable to the interpretation of a Code, and as assimilating the legislative position to the common law position. This, the argument runs, involves treating the provision as if it provided that the publication was privileged where it was for the public good that the law should give permission to publish, rather than, as it actually does provide, that the publication itself should be for the public good (Address by Walsh, J.A. to the Council for Advanced Legal Studies of the New South Wales Bar Association on "The Defamation Act, 1958 and the Common Law").
31. Complaints that the law of defamation does not leave sufficient freedom to protect the investing public against promoters are of long standing, and our attention was drawn to a recent reference to this matter in the New South Wales Parliament, indicating the persistence of concern despite the provision in the Defamation Act for qualified privilege for replies to inquiries by interested persons (s. 17(d)).
32. Other representations received concerning the classes of publications accorded qualified privilege related to those "in the course of, or for the purposes of, the discussion of some subject of public interest, the public discussion of which is for the public benefit, and, if, so far as the defamatory matter consists of comment, the comment is fair" (s. 17(h)). The expressions of dissatisfaction with this provision shade from complaints about the obscurity and number of the conditions imposed by its terms - as for example, the requirement of a discussion - on the operation of this provision to broad appeals for a privilege for publications of fact and comment on matters of public interest, for example, the public conduct and capacity for their public duties of public men. Once again American precedent was represented as putting the matter on a more satisfactory basis, both New York Times v. Sullivan (Supra) and Pauling v. News Syndicate Company ((1964) 335 F 2d. 659 (U.S. C.A. 2d)) being cited to us for the broad principle of American law that assertions about public conduct are the subject of privilege defeasible only on a showing of deliberate falsehood or recklessness. It is to be noted, that in recent decisions a number of judges of the Supreme Court of the United States have limited this rule to conduct of public officials (Time Inc. v. Hill (1967) 385 U.S. 374 and Curtis Publishing Co. v. Butts (1967) 388 U.S. 130).
33. Among new specific privileges which it is suggested should be recognized, the Australian Broadcasting Commission puts forward the claims of "fair and accurate literary work", pointing out that historical drama is not being written here at present. Of related import is the request of the Royal Australian Historical Society for a general privilege for academic work published in good faith. A more specialised request for new privilege is by the Institute of Chartered Accountants in relation to the activities of auditors.
34. It has been suggested in conjunction with the allegation that the existing privilege to publish for the public good is too vague to be of benefit that there should be some general provision enabling categories of qualified privilege to be extended.
35. Apart from the major defences relating to privileged reports, fair comment, justification, and absolute or qualified privilege for certain occasions which have just been considered, the Defamation Act, 1958 provides for a number of matters to be raised in defence or mitigation, but imposes a condition on the availability of certain of these provisions by section forty one. This is that, where the publication complained of is a printed article, there must have been compliance with "all the provisions made by law for regulating the printing and publication of newspapers and papers of a like nature, or of the trade of printing generally". There is newspaper objection to wearing this modified caput lupinum resulting perhaps from some small oversight in a registration.
36. The major practical impact of all the substantive law recommendations so far made would be on civil proceedings for defamation, but the possibility of criminal proceedings is preserved by the Defamation Act, 1958 (ss. 26-32), subject to leave being outlined from a judge (s. 33). The Australian Society of Authors asks that the criminal remedy for defamation should be abolished.
PROCEDURE
37. In 1966 a Supreme Court judge expressed the view that the conduct of libel actions in this State had become far too overladen with procedural technicalities, which tended to hide the true function of the law of defamation (Gunn v. Australian Consolidated Press Ltd. (1966) 85 W.N. (Pt. 1) 61 per McClemens, J. at 63). It was in the same that the President of the Court of Appeal made the remarks on the same subject to which we have referred in another connection (Supra para. 19) He described it as "a lamentable feature of modern defamation actions in this State that their course is tardy and beset by interlocutory applications, demurrers and appeals". (Clines v. Australian Consolidated Press Ltd. (1966) 84 W.N. (Pt. 2) 86 per Wallace, P. at 89-90). This, it will be recalled, Sir Gordon attributed to the fact that the 1958 Act seemed to attract technical difficulties, though this he attributed in turn to its handling of the substantive law, not to vice in existing procedures. Nevertheless, a number of objections have been made to procedural aspects of the present law, and we deal here with those outside the fields of pleading and evidence.
38. Some representations from newspapers related to the composition and functions of the jury and the relation of its functions to those of the trial judge and appeal courts. One claim was that for the decision of matters of this sort it was desirable that juries with special educational equipment should be selected. There was also metropolitan and country newspaper advocacy for the abolition of the jury altogether. A more limited complaint concerned the rule that the question of public benefit in the defence of truth and public benefit should be left to the jury. A further newspaper plea was that if the question of liability had to be dealt with by a jury, at least the question of damages should be dealt with by a judge, though a different newspaper interest would prefer to see liability dealt with by the judge and damages assessed by the jury, subject to a fixed ceiling. There is strong newspaper support for the recommendation of Lord Shawcross' committee that the argument on the legal question of whether a publication is capable of a defamatory meaning should take place in the absence of the jury and that the jury should not be told of the judge's ruling (Report (1965) p. 35) .With the same object of avoiding jury prejudice, a newspaper suggested that counsel should not be allowed to refer to bad faith affecting a publication, till the judge had held, on legal argument in their absence, that there was evidence to go to them on the matter.
39. There is wider than newspaper support for an extension of the powers of Appeal Courts to deal with jury verdicts. The Australian Association for Cultural Freedom adopts the same view as Lord Shawcross' committee in believing that the Appeal Court should have the power to vary the jury's verdict so as to substitute the proper amount of damages for that awarded by the jury (Report (1965) p. 34). Lord Porter's committee had similarly recommended in 1948 that the Court of Appeal should have power to reassess damages even if not so excessive as to justify the ordering of a new trial on present principles (Cmd. 7536, (1948) p. 38), but this recommendation was not passed into law (See Heuston article, p. 266).
40. We have referred (Supra para. 27) to the point made by Queen’s Counsel who claims confusion in the Act between the matters going to the existence of a privileged occasion and its abuse. This is alleged to occur through making the question of the relevance of matter to a privileged occasion part of the question of good faith. We have now to notice that learned counsel also objects that since by a later provision the question of relevance is allocated to the jury (s. 19), the jury is thereby given part of the judge's function of determining what is a privileged occasion (T.E.F. Hughes, in the address referred to in the abovementioned paragraph).
41. Newspaper interests advanced views regarding the times allowed for bringing and prosecuting suits. Such interests requested attention to the possibility of shortening the period of limitation for defamation actions, one to a period of six months in actions against newspapers (which Lord Shawcross' committee thought too short, Report (1965) p. 40). Concern was expressed at the problem created by the plaintiff who issues a writ to strangle criticism and then does not prosecute the action. Provision was asked for leave for the defendant to sign final judgment in the event of prolonged delay, and for a penalty by way of award of treble costs against a plaintiff discontinuing in circumstances indicating abuse of the court's process. Lord Shawcross' committee recommended in response to similar representations about "stop writs" that an action should be dismissed on the application of the defendants if a plaintiff took no steps in it for six months and was not able to show good cause for the delay (Report (1965) p. 37).
42. When the Defamation Act, 1958 was introduced a costs provision of the previous defamation law was repealed. This was that if in any action for defamation a verdict, was in favour of the plaintiff for damages in any sum less than forty shillings, the plaintiff should have judgment to recover such sum only, and should not have judgment to recover any costs, unless the judge in any case of libel certified that the words charged as defamatory were published without reasonable grounds or excuse (Defamation Act, 1912 - 1948, s. 10). A newspaper interest asks that this rule be restored and it may be recalled a similar view was unsuccessfully advanced by the New South Wales Bar Association in 1958. A further request, again from a newspaper, is that security for costs should be ordered where a plaintiff sues a newspaper outside its home State.
PLEADING AND PARTICULARS
43. Two newspaper interests complained about the manner in which plaintiffs currently set forth their case in their declaration. One complaint was based on the extent to which the defendant might be left in ignorance of what the plaintiff regarded as the defamatory sting of the publication complained of. It therefore requested action to compel the plaintiff to allege this by way of innuendo. The plaintiff is at present bound to allege an innuendo specifying any meaning claimed to arise by reason of special circumstances which affect the meaning of the words complained of in the particular case. What is therefore being asked is that the plaintiff should not only be required to specify such "true" innuendoes but also "false" innuendoes which are meanings which can be drawn from the words without reference to peculiar circumstances affecting the particular case, but yet may fall short of being entirely explicit in the words themselves. This claim may present a problem of reconciliation with that of another newspaper, which is concerned with the inflammatory effect on the jury of plaintiffs' alleged practice of unnecessarily including large numbers of colourfully expressed innuendoes in the declaration. This interest wishes to see such innuendoes suppressed, and generally wishes to see the prolixity of declarations - prefatory averments, the length of setting out of published words complained of, and the innuendoes alleged - reduced to essentials.
44. A newspaper interest asks for clarification of the law relating to fair comment along the lines that the principle established by the judgments of the majority in Orr v. Isles ((1965) N.S.W.R. 677) be enshrined in statutory form". This is a representation about substantive law to the effect that the principle there laid down as common law should be continued in any statutory changes that are made so that it should not be essential to the defence that the facts which are the basis of the comments, whose fairness is in question, should have been published for the public benefit. It may however also be expressed, as traditionally it has been, in pleading terms by being put as a claim that the "rolled up plea" should be recognized as valid in its English form, and not as requiring modification to allege publication for public benefit of the facts on which the comment is based. The traditional English form of this plea is "In so far as the words complained of consist of statement of fact, they are true in substance and in fact and in so far as the said words consist of expressions of opinion, they are bona fide and fair comment made in good faith and without malice on the said facts which are matter of public interest" (Gatley on Libel and Slander (6 ed. 1967) 326) .
45. The Rule of Court specifying the particulars which a judge may require the defendant to give in cases where he has pleaded fair comment (R.S.C. Order XIV r. 18A(1)) is the subject of newspaper objection. Particular objection is made to that part of it which enables the defendant to be required to distinguish the facts from the comments in the publication complained of, the argument being that the decision on this subject being for the jury the defendant should be entitled to leave it to them.
46. Judicial criticism has been directed at the same rule. The President of the Court of Appeal takes note that the rule seems inapposite to the code laid down in the Defamation Act, 1958, being related rather to the common law of fair comment on a matter of public interest, which could now be of little application in view of the width of the matters covered by the statute (Denham v. Mirror Newspapers Ltd. (1966) 86 W. N. (Pt. 2) 1 (C. of A.) per Wallace, P. at 2). A judge of Appeal has also criticised the rule on the basis that it appears to assume that the truth of the facts on which the comment is based must be proved under the Act, whereas it is not obvious that this is so (S.C. per Walsh, J.A. at 4).
47. A newspaper interest appeals for action to ensure that particulars are ordered in relation to certain aspects of the assessment of damages. It is argued that the plaintiff should always have to give particulars of any facts upon which he proposes to rely in aggravation of the damages, and the defendant of any evidence which he proposes to call in mitigation.
EVIDENCE
48. Under the Defamation Act, 1958 when any question arises whether a publication of defamatory matter was or was not made in good faith, and it appears that the publication was made under circumstances which would afford lawful excuse for the publication if it was made in good faith, the burden of proof of the absence of good faith lies upon the party alleging the absence (s. 18). The Australian Society of Authors suggests, per contra, that the burden of proof should not rest on the plaintiff to establish the defendant's bad faith where this is relevant, but that in such cases the onus should lie on the defendant to establish his good faith. This is opposed to the view of certain newspapermen who wonder whether the provision of the Act sufficiently ensures that good faith will be I)resumed in favour of the defendant in all relevant contexts.
49. Sir Gordon Wallace has criticised the uncertainty of section eighteen from this point of view. He notes that its language suggests that it allocates the burden of proof in relation only to cases where question arises in the context of the statutory qualified protections (s. 17). He adds, however, that its construction is clouded by the presence of the phrases "when any question arises", "and it appears" and "the party alleging the absence" - phrases which he describes as lacking in precision and clarity (Motel Holdings Ltd. v. The Bulletin Newspaper Co. Pty. Ltd. (1962) 80 W.N. 213 (F.C.) per Wallace, J. at 221). In correspondence with the Commission a Supreme Court judge has also referred to the difficulty of interpreting section eighteen.
50. Objections come from the bar in relation to the range of matters which may be admitted as evidence on the issue of good faith for the purpose of establishing liability or aggravating damages. Senior counsel claims that to allow evidence of other defamatory publications to aggravate damages is to invite danger of double recovery (T.E.F. Hughes, Q.C. , Address to the Council for Advanced Legal Studies of the New South Wales Bar Association "Malice in Relation to Privileges and Damages in the Law of Defamation" pp. 32-33). It is also claimed that evidence of this sort, as well as of failure to apologize and of trial conduct, tends to be received improperly as evidence on good faith affecting liability through the development of confusion between its admission for this purpose and for the purpose of aggravating damages (D.A. Hunt, Address to the Council for Advanced Legal Studies of the New South Wales Bar Association "The Conduct of the Defendant to an Action for Defamation" e.g. p. 6). It is in any case claimed that in view of the doubtful state of the authorities and the low probative value of such evidence on the issue of liability, its admission for that purpose should be re-examined in the light of the basic principles of the law of evidence (Same address, p. 26).
51. A newspaper interest asks that the matters which are elements in the definition of good faith for the purpose of the defence of qualified protection should instead be treated as merely evidence going to its existence. This is an attempt to ameliorate the rigidity of the definition which we have seen (Supra para. 27) has also been the subject of criticism by the bar.
MISCELLANEOUS
52. A number of representations made to us do not relate themselves readily to any of the major legal classifications by reference to which we have digested those so far considered. We set these forth here.
53. Several requests have come to us from different sources for the repeal of the Defamation Act, 1958 in toto. These usually seem to be made in conjunction with criticisms of the provision of the Act relating to imputations upon dead members of a prospective plaintiff's family, with which the Act, not unnaturally in the light of the publicity this aspect has received, is associated in the minds of many members of the public.
54. Some newspapers with circulations beyond the boundaries of one State are desirous that steps should be taken to achieve uniform laws throughout the Commonwealth of Australia. The Royal Australian Historical Society refers to a related matter when it criticises the present Act for the doubt it leaves as to its scope vis a vis the jurisdictions of other States and countries. It particularly calls attention to what it describes as the conjectural position of New South Wales authors who publish elsewhere material capable of a defamatory meaning under the Act or booksellers in New South Wales who accept for sale material lawfully published abroad which may be defamatory under the New South Wales Act.
55. A newspaper interest has argued that the importance of the functions of newspapers and the difficulty they encounter in defending actions calls for radical changes in the law to give newspapers special rights. It is argued there should be presumptions in their favour that matter published is true and/or that it was published on a privileged occasion until the contrary is proved, that there should be absolute privilege for newspapers to report statements by apparent "authorities" on subjects which are not obviously unfair, that there should be a privilege to publish matter regarding the official actions or the capacity of persons occupying representative or official positions when not actuated by personal ill will, that damages for accidental defamation by a newspaper where appropriate mitigatory action is taken by the newspaper should be limited, and that a limitation period of six months should be imposed in respect of an action for defamation against a newspaper.
56. A New South Wales Parliamentarian makes the suggestion to us that defamation litigation could be considerably diminished if persons of whom material was published had a right of reply and correction. He directed our attention to the report on this subject for UNESCO (Fernand Terrou and Lucien Solal, Legislation for Press, Film and Radio (1951) pp. 338-345). The authors explain that in France there is a right of reply to mentions, not necessarily defamatory, of persons in newspapers and periodicals, and a more extensive right of correction to public officials whose activities are inaccurately reported. While there are similar provisions to some extent in Continental countries, the authors note their absence in Britain and the United States of America. They commend the adoption by the General Assembly of the United Nations in 1949 of the principle that a contracting State to the "Convention on the International Transmissions of News and the Right of Correction" shall forward communiques from other States regarding news items which they feel injure their relations to news media for correction. Lord Porter's committee considered that the droit de résponse existing under many Continental systems of law was valuable in the case of reports of meetings of a local or limited character but was unsuitable and liable to abuse in the case of reports of such bodies as the United Nations or a foreign Parliament, and in case of foreign proceedings might lead in effect to a retrial (Cmd. 7536, p. 26). It specified, as in its view appropriate matters for a right of reply, reports of Associations about a member, reports of public meetings, reports of some meetings of local authorities, Commissioners, justices of the Peace, and statutory bodies, reports of general meetings of some companies, and reports of certain official notices issued for the information of the public. The legislative action proposed was that privilege be accorded to such reports only on condition that the right of response was given (Cmd. 7536, pp. 27-28 and see the results in Part II of the schedule to the Defamation Act, 1952). Lord Shawcross' committee proposed further extension of this conditional type of privilege (Report (1965) pp. 38-39).
57. As a final point arising out of a multiplicity of objections, a newspaper group suggests that recent developments in the operation of the law have upset the balance between protection of reputation and free speech to the detriment of the latter.
