Paragraphs 66 to 116

THE CODE PRINCIPLE

66. The character of the Defamation Act, 1958 represented a sharp break with the legislative policy which had been consistently followed since first the Legislative Council dealt with the topic in the Injury to Character Act, 1847 (11 Vict. No. 13). The latter Act is entitled merely "An Act to amend the Law respecting defamatory words a and Libel” and makes no attempt to cover the subject or generally to supersede the common law. The next Act to deal with defamation, 13 Vict. No. 16, so far as relevant, had principally the purpose "to give Protection to Persons employed in the Printing and Publication of Papers by the order or authority of the Legislative Council or a Committee thereof". The Act, 37 Vict. No. 11, amended a single provision of 11 Vict. No. 13 (S. 14 of the latter Act being amended by s. 4 of the former). The Act, 50 Vict. No. 26, aimed "to amend the Law relating to Libel and Slander". The Defamation Act, 1901 (No. 22 of 1901) was "An Act to consolidate the Statutes relating to Defamation", repealed all the Acts so far mentioned for the purpose of consolidating them, and was certified as in no way altering the law as contained in them (See Cockshott and Lamb, Statutes of N.S.W. 266). The Act dealt only with the statutory amendments to the Common Law (and not quite all of those - for example, it did not touch s. 72 of the Common Law Procedure Act, 1899); it did not attempt to reproduce the common law left unamended by the statutes. The Act, No. 22, 1909 was "An Act to Amend the Law of Defamation" and was quickly deprived of its independent existence by a further "Act to consolidate the Statutes relating to Defamation" (The Defamation Act, 1912 (Act No. 32, 1912)). Thereafter the expedient was adopted of inserting amending sections in the principal Act, and the 1912 Act continued in existence with amendments (by 1917, No. 14, 1940, No. 4 and 1948, No. 39) until 1958, still retaining the character of a group of miscellaneous provisions amending the common law. The Defamation Act, 1958, on the other hand, endeavoured largely to cover the field of substantive law and to supersede the common law, in accordance with the object expressed in its title "to state and amend the law relating to defamation". As to substantive law, it broadly attempts codification, although it largely leaves the questions of adjective law to the common law or existing statutory regulation.

67. We have referred (Supra para. 19) to judicial criticism of the extent to which the Act relies on an attempt to codify the law in the Indian Penal Code of 1860. We have also sought to show that the law of defamation is a rapidly developing body of principle (Supra paras. 58 65) and it was therefore inevitable that an attempt to codify in 1958 in terms appropriate to the state of the law in 1860 should give rise to obscurity and leave the "ample scope for debate" to which a Judge of Appeal referred in a passage cited. We have also referred to criticism from distinguished sources of the rigidity and stultification of development produced by the sections setting out protections available to the defendant which are in reality the most critically important parts of the Act and the area where it more particularly relies on the Indian Penal Code (Para. 20). With these strictures we are disposed to agree and we shall have our own more particular criticisms of individual sections to add to them in the course of throwing up later suggestions. We are disposed to recommend as at present advised that the Defamation Act, 1958 be repealed.

68. If this view is ultimately accepted the choice is between seeking to formulate a new and modern code or returning to the former policy of legislation in New South Wales whereby statutory provision is made only in relation to those matters where the common law is considered defective. The objection to the former course is that the law in New South Wales before the introduction of the Act was not sufficiently static to be ripe for codification, particularly in relation to the need for flexibility in the key matter of formulating occasions of qualified privilege. Of this Sir Samuel Griffith himself said that it is obviously impossible to lay down an exhaustive list of such occasions and "the rule being founded upon the general welfare of society, new occasions for its application will necessarily arise with continually changing conditions" (Howe v. Lees (1910) 11 C.L.R. 361 per Griffith, C.J. at 369). We find it difficult to reconcile this statement, with which we agree, with Sir Samuel's earlier codification activity in this field (in the Defamation Law of Queensland of 1889 and the Queensland Criminal Code of 1899) which largely has determined the provisions of the Defamation Act, 1958. What is perhaps more important, however, in complicating any attempt to make a list as comprehensive as possible at a particular time, is that changing conditions require some flexibility to be maintained in the formulation of existing heads of qualified privilege. Speaking of attempts to bring broad principle in this field within statements of heads of qualified privilege Mr. Justice Higgins said that there had been a tendency to treat certain circumstances of frequent occurrence, as if they settled the question of the applicability of the principle. He added: “The hounds of the law sometimes lose the scent of the principle in looking for the likely cover for the game" (Id. at 395). Of one attempt to introduce formulas in this field Sir Owen Dixon has said that it is "a matter covered by many decided cases which do not always respond easily to the formulas" (Guise v. Kouvelis (1947) 74 C.L.R. 102 per Dixon, J. at 125).

69. We anticipate here our comment on a specific provision of the Defamation Act, 1958 for the purpose of illustrating the point made in the previous paragraph in necessarily very general terms. The Defamation Act, 1958 provides for qualified protection for publications "in order to answer or refute some other defamatory matter published by the person defamed concerning the person making the publication or some other person" (S. 17(g)). This is not one of the provisions which derives from the Indian Penal Code; it appears in the Defamation Law of Queensland in 1889 and thence found its way into the legislation of New South Wales in 1958. In introducing it in the Queensland Parliament Sir Samuel Griffith said of it: "That is only common sense, and is probably the law, but it may be doubtful" (57 Queensland Parliamentary Debates (1889) 737). It is therefore apparent that Sir Samuel found it necessary to formulate this principle without guidance of authority and subsequent authority has shown that it was not formulated with appropriate breadth because of the difficulty of anticipating complexities which subsequent judicial experience may always bring to light. In Loveday v. Sun Newspapers ((1938) 59 C.L.R. 503) it was laid down that there was qualified privilege for a newspaper to publish a reply where the plaintiff had criticised a local government body for failing to give him work, yet it does not appear that the plaintiff's criticism was necessarily defamatory of any particular person, and would therefore not obviously fall within s. 17(g) if similar circumstances were to arise now in New South Wales. Again, in Norton v. Hoare ((1913) 17 C.L.R. 310) it was held that where an attack is not defamatory but is such as would amount to an injurious falsehood if it caused damage the defendant has a qualified privilege to reply. These circumstances would clearly not fall within s. 17(g) but in the two cases mentioned the courts were considering the matter on common law principles and had no difficulty in recognizing a privilege. A third example may be taken from an unreported case cited by Sir Owen Dixon (in Loveday v. Sun Newspapers (Supra) at 519 where he refers to Bowen-Rowlands v. Argus Press Ltd., The Times 10th Feb., 1926 p. 5 and 26th March, 1926 p. 5). The plaintiff had attacked the reputation of Bradlaugh at a time when this was no defamation because Bradlaugh was dead. Bradlaugh's daughter replied in the defendant newspaper reflecting on the character of the plaintiff and it was held that there was qualified privilege. Again the court was able to do justice on common law principle and it seems that if these kinds of question arose today in New South Wales the statute would be but a hindrance. If the defendant sought to rely on a common law privilege raised by one of these cases he could be met, though not necessarily successfully, with the argument that the matter is “dealt with” by s. 17(g) and is thus explicitly excluded from the scope of s. 3(2) preserving some common law privileges. If this argument were successful, the defendant would be relegated to arguing one or more of the other and more general qualified protections granted by s. 17, to the obscurity of which numerous objections have been made. It would certainly be possible for us to recommend reformulation of s. 17(g) in the light of the judicial experience which is available to us and not to Sir Samuel Griffith. But judicial experience is a continuing process and we agree with the judgment of Lord Porter's committee in refusing to recommend codification of the English defamation law that "the great variety of circumstances in which actions for defamation may arise makes it impossible to envisage them all and thus to legislate for them separately and in detail" and "it is equally impossible to describe them in general terms so as to enable them to be dealt with comprehensively without grave danger of causing injustice" (Cmd. 7536 p. 7). To this main argument we would add the subsidiary point that the problems of interpreting an Act which merely modifies and is to be read with the major body of common law principle are in our opinion easier and hence less productive of dispute because of the Act's relation to that common law background than one which has to be understood as a code (See the discussion of the problems of interpreting the, Defamation Act, 1958 arising out of its character as a code in the address of Walsh, J.A. to the Council for Advanced Legal Studies of the New South Wales Bar Association "The Defamation Act, 1958 and the Common Law", pp. 6 -8) .

70. In these circumstances we are disposed to suggest that there should be a return to the legislative policy consistently followed in this State for over a century before 1958. In what follows we use, for the sake of brevity, the name "Defamation Act, 1969" to refer to a hypothetical Act to give effect to some of the proposals discussed in this working paper.

THE REPEALING SECTION (SECTION 2)

71. By s. 2 of the Defamation Act, 1958 and by the Schedule to the Act, the Defamation Act, 1912 and the various Acts which amended that Act were repealed. It follows from what we have said that we are considering recommending that a section in similar terms be substituted for it in the Defamation Act, 1969 that "The Acts mentioned in first Schedule to this Act are to the extent therein and that the first Schedule should contain as an item “No. 39, 1958 - Defamation Act, 1958 - The whole".

72. We are disposed to recommend that a further item in the Schedule of repealed Acts should be "Act No. 21, 1899 - Common Law Procedure Act, 1899 - Section 72". We have set out the legislative history of this section above (para. 61). It provides that "in actions of libel and slander the plaintiff may aver that the words or matter complained of were used in a defamatory sense, specifying such defamatory sense without any prefatory averment to show how such words or matter were used in that sense, and such averment shall be put in issue by the denial of the alleged libel or slander, and where the words or matter set forth with or without the alleged meaning show a cause of action the declaration shall be sufficient". The language of the section is in any case at this stage inapt to refer to the present position in New South Wales where libel and slander are no longer significant categories within the law of defamation. More importantly, its substance prescribes a practice which has been extensively modified in England whence the practice was derived and it will be necessary for us to make appropriate recommendation for modification of the practice here as part of more comprehensive recommendations regarding the form of the declaration (Infra paras. 285, 286).

73. We are disposed to recommend that a further item in the Schedule of repealed Acts should be "Act No. 40, 1900 - Crimes Act, 1900 - The proviso to section 400". Section 400 provides that in every case, whether of felony or misdemeanour, the presiding judge shall have power to order the accused to enter the dock or usual place of arraignment, or to allow him to remain on the floor of the Court, and in either case to sit down, as such judge shall see fit. This section continues with the matter of which we recommend repeal: "provided that every defendant in a case of libel, or of assault simply not being an indecent assault, may remain on the floor of the Court as at present". This section was continued from The Criminal Law (Amendment) Act, 1883 (46 Vic. No. 17) s. 335 and there is no corresponding English enactment (Hamilton and Addison Criminal Law and Procedure (6 ed. 1956) 374). As a result of the replacement of the crime of libel by the general crime of defamation by the Defamation Act, 1958, this provision in its application to libel produces an anomaly. There seems no reasonable purpose in giving to the person charged with criminal defamation which would fall within the old conception of libel, outdated in New South Wales, a privilege not available to persons charged with other kinds of and for the purpose of applying the provision to require the court to concern itself with the arid technicalities of the conception of libel. Whether or not, therefore, our later suggestions (Infra paras. 244-252) in relation to criminal defamation are accepted, we are disposed to recommend that the proviso at present under consideration should be repealed, at least in its application to libel. If our later suggestions are accepted, the proviso now under consideration should be repealed, at least in its application to libel. As incidental to our proposal in relation to libel we are considering recommending that the proviso be repealed in its relation to assault, for there seems no justification for leaving the person charged with assault in a position which would then be one of unique privilege, especially when the conception is apparently not distinguished by the Crimes Act from battery. It is possible that community attitudes to assault have changed from the robust era of the eighties from which at least the provision dates.

74. By the Judgment Creditors' Remedies Act, 1901, it is provided “that the limitations on liability to arrest on a writ of capias ad satisfaciendum shall not apply to "any such writ issued in an action for breach of promise of marriage, libel, slander, seduction or any malicious injury" (s. 21). These exclusions have remained in substantially their present form for over a century (See 10 Vic. No. 7 s. 3). In the meantime the conditions of liability for defamation have become increasingly strict (See supra para. 61) so that as a tort it has become increasingly unlike those with which it is found in company in s. 21, which are all torts of conscious wrongdoing. This must raise a serious question as to whether a judgment debtor in respect of defamation should continue to be deprived of the protection against imprisonment provided for judgment debtors by the Act, even if the provision remains undisturbed in relation to the other torts mentioned. Since, however, the whole of the provision is at present the subject of consideration by the Commission, we are disposed to make no recommendation at this stage.

75. By s. 29 of the Venereal Diseases Act, 1918 it is provided that "without limiting the operation of the provisions of this or any other Act, every person who, without legal justification or excuse, falsely alleges, whether by words or otherwise, that any other person is suffering or has suffered from venereal disease (whether the form of such disease is specified or not) shall be guilty of the offence of publishing a defamatory libel, and the provisions of the Defamation Act, 1912, as to the offence of publishing a defamatory libel shall apply accordingly". Questions may be raised as to the present operation of this provision in view of the passage of the Defamation Act, 1958 with (1) its inclusion of criminal provisions apparently dealing with the same subject matter as the provision under consideration and (2) its repeal of the Defamation Act, 1912. If, as would appear to be the case, the term “words” refers to words whether in permanent form or not, and the words "or otherwise” to transitory gestures as well as permanent representations, then the Venereal Diseases Act provision was to provide for a crime of defamation wider than libel in relation to this particular subject matter. Additionally, it might be argued that the effect of the section was to give an "allegation", which might not be to a third party, the effect of a "publication" to a third party. If this is correct the section had a somewhat wider effect in relation to this particular type of allegation than is achieved by the general crime of publication of defamatory matter established by the 1958 Act. The question is raised therefore whether the Act of 1958 supersedes the 1918 provision or is cumulative with it, so that a prosecution can be brought under either. A further question is whether the conditions governing the prosecution under the 1918 provision, assuming it to continue in existence, are those provided by the 1912 Act or the 1958 Act. it may be conjectured that the reference in the 1918 section to the provisions to “apply” was to the conditions in ss. 17 to 25 of the 1912 Act. Most of these have disappeared from the 1958 Act, and it would therefore seem to be impossible to apply the provisions of the Interpretation Act 1897, s, 25 whereby references to provisions in a repealed Act shall, unless the contrary intention appears, be construed as references to provisions in an Act which repeals and re-enacts them, with or without modification. It would seem that the Interpretation Act must refer to substantial re-enactment of the provisions as a whole. It might seem therefore that the provisions governing a prosecution under the Venereal Diseases Act would be the provisions of the Defamation Act, 1912 regarded as notionally continued in existence for this purpose (See 36 Halsbury's Laws of England 3 ed. 471). This would be unsatisfactory apart from the doubts and complications affecting the conclusion that this is the position, and we incline therefore to recommend that the provision be repealed so that one item in the Schedule of Repealed Acts would read No. 46, 1918 - Venereal Diseases Act, 1918 - section 28". We would not expect to recommend that the provision should be replaced by a redrafted one for reasons discussed infra paras. 244-247.

THE SAVINGS SECTION (SECTION 3)

76. By s. 3(1) of the Defamation Act, 1958 it is provided that any alteration of the law by the Act, whether by the repeal of an enactment or otherwise, is not to operate retrospectively in various respects, and further that this saving provision is not to limit any saving in the Interpretation Act, 1897. The reference to the Interpretation Act is, at any rate principally, a reference to s. 8 providing against any retrospective effect of a repeal in relation to the previous operation of a repealed enactment, or to rights acquired or penalties incurred or proceedings and remedies under the repealed enactment. Comparison of s. 3(1) of the Defamation Act with s. 8 of the Interpretation Act indicates that the draftsman of the former considered it desirable to extend the provision against retrospectivity provided in the Interpretation Act so as to save the past operation not only of repealed statutes but the common law as well. This course no doubt was taken in view of the codifying character in relation to substantive law of the 1958 Act, which meant that much common law was being replaced by statute, even though in most matters the statutory provision was not different from the common law. It may nevertheless be questioned whether there was a legal necessity for this extension or whether the matter could not have been left to ordinary principles of interpretation with the same result. But the draftsman may properly have considered that, in view of the allegations publicly made in 1958 regarding the supposed retrospectivity of the Statute about to be introduced, it was important by way of reassurance to have the whole matter of retrospectivity explicitly dealt with as far as possible in the Defamation Act itself. We have no reason to anticipate any similar need in 1969. We therefore expect to recommend that s. 3(1) be repealed and that the provisions of the common law and the Interpretation Act, 1897 be relied on to preserve existing rights. The Act proposed, however, presents the converse problem to the Act of 1958 in that it would, because of the recommendations in paras. 66 to 71 (Supra) return a number of matters which have been governed by statute in the past ten years to the common law. A principle which therefore becomes important is that the repeal of an enactment altering common law does not necessarily the common law that was displaced by the repealed enactment, it merely raises a presumption that such revival was intended (Marshall v. Smith (1907) 4 C.L.R. 1617). To remove doubts on this subject we expect to recommend, ex majori cautela that provision be made that "Subject to the provisions of this Act, the repeal of an enactment by this Act shall revive the common law".

77. By s. 3(2) of the Defamation Act, 1958 it is provided that “except where this Act deals with, and makes a different provision for, any protection or privilege existing by law immediately before the commencement of this Act, nothing in this Act is to be construed to affect any such protection or privilege". This section may give rise to difficulties in its application. In the first place, if a common law privilege relates to a similar subject matter to a privilege given by the statute but is broader in scope (as in the example discussed in para. 69, supra) the question arises as to whether the defendant is entitled to rely on the common law privilege by virtue of s. 3(2) or whether the statutory privilege "deals with, and makes a different provision for" the subject so that in a case falling outside the statutory privilege the defendant is deprived of his common law defence. The President of the Court of Appeal has said that "perhaps the real difficulty in the final analysis is to determine (particularly for the purpose of construing s. 17) whether the provisions which are expressed in the code are themselves complete and exclusive" (Clines v. Australian Consolidated Press Ltd. (1966) 84 W.N. (Pt. 2) 86 per Wallace, P. at 90). Similarly a judge of Appeal has said that the precise operation of the subsection is difficult to envisage (Walsh, J.A. in address for the Council for Advanced Legal Studies of the New South Wales Bar Association "The Defamation Act, 1958 and the Common Law" p. 27). A further source of obscurity in relation to the operation of the subsection arises out of the use of the words "protection or privilege". The word "privilege" is a term of art at common law but the word "protection" is not and seems to be used in the 1958 Act to cover only some kinds of defences (See infra para. 117, 118) and exactly what kinds is not clear. If therefore a particular defence falls outside the description of "privilege" it will not be clear whether it is preserved under s. 3(2) or whether if it is not it is for that reason no longer available because of the character of the Act as a code of substantive law. The difficulty may be illustrated by raising the question of the present status of the defence of leave and licence. Sir Owen Dixon, speaking of the common law position, says that privilege, if it is established, negatives liability for any statement whether it is prima facie untrue or is untrue only by innuendo, and whether consent has been given to the publication or not; “or, to put it in another way privilege, truth and consent are three entirely separate defences". Sir Owen adds that it is for the 1aw to say whether privilege in any form exists. Parties cannot by mere agreement create it. "But they can, as they did in Cookson v. Harewood ((1932) 2 K.B. 478n.) agree that one of them shall be entitled to publish the truth about the other, and such an agreement will exclude liability for defamation" (Loveday v. Sun Newspapers (1938) 59 C.L.R. 503 at 524). In Orr v. Isles ((1966) 83 W.N. (Pt. 1) 303) Mr. Justice Walsh referred to Sir Owen's judgment as drawing a clear distinction between the defence of leave and licence and the type of privilege "in which an element is the inciting or inviting by the plaintiff of publication" (as with the privilege established by the Defamation Act, 1958, s. 17(f)). If therefore a defendant cannot bring his case within s. 17(f) and wishes to rely on s. 3(2) a Court may be faced with finding an answer to the obscure question of whether the defence of leave and licence is a protection, and if it is not,, to the obscure question of whether the code character of the Act is inconsistent with the continued existence of the defence at common law.

78. In the light of the above obscurities we are disposed to recommend that, whether or not the general recommendations we have foreshadowed for a new Act are adopted, this subsection at least should be repealed and replaced by a subsection reading:

"The provision of a defence by this Act shall not without more affect the existence or scope of any defence, or exclusion of liability, recognized or which may come to be recognized at common law or which exists under any enactment in force at the commencement of this Act and is not repealed by it."

The use of the word "defence" would, we believe, make it clear that such defences as leave and licence are intended to be preserved, even if they do not constitute "protections" or "privileges". The expression "exclusion of liability" is designed to deal with arguments that certain matters of exclusion of liability are not matters of defence. For example one possible matter for argument under the present Act might be whether the word "publication" under the Act by reason of the definition in s. 8 includes publication by the defendant to his spouse (See infra para. 114). Assuming that it does, the question arises whether s. 3(2) nevertheless excludes liability for such communications because there was no liability for them at common law. To this solution, however, it may be objected that the common law immunity arises not from the law of privilege but because such communications do not come within the common law notion of publication. Even if the immunity of such publications at common law is not thought of as arising out of a defence, however, it would appear to come within the notion of an exclusion from liability. An additional reason for adding the phrase "exclusion from liability" as an alternative to "defence" in the proposed provision is that it is said by Mr. Justice Ferguson in Orr v. Isles (Supra.) referring to Odgers on Libel, that a fair comment is strictly not libel at all because of the importance of the right to comment (At 319-320). If this is correct fair comment may not be properly referred to as a defence but would seem to be properly described as an exclusion from liability. Strictly speaking, it should be unnecessary to distinguish, as our proposed provision does, between defences which are recognized at common law and those which may come to be recognized, having regard to the theory of the existence of the common law from time immemorial. However, in view of queries raised, in the light of the history of successive adoptions by the present Act of provisions from India and Queensland, as to whether it is the common law of 1860 or 1889, or 1899, or 1958 which is to be look fr to in interpreting the Act, we make it clear ex majori cautela that the defences and exclusions from liability preserved are those recognized right up to the time the litigation in which a question arises takes place. This is especially important in view of the fluidity of the law in relation to privileges. For this reason we are disposed to consider this provision should be included in any new Act we recommend, even though the proposed Act does not seek comprehensively to cover the field of defences, lest some defence which is included may be interpreted as excluding a newly recognized common law privilege.

79. A disadvantage of the proposals in the previous paragraph, which we think may be worth incurring because of the paramount importance of preserving flexibility of the law relating to defences, is that it may lead to a multiplicity of statutory and common law defences with consequent threatened complication of pleadings and argument. It is only since 1962 that special pleas have been necessary in relation to defences other than justification, or statutory privileges for reports under s. 14(1) of the 1958 Act or s. 29 of its predecessor, the Act of 1912, and it was said in Orr v. Isles (Supra) that it is questionable whether the rule then introduced was intended to apply to privileges at common law or intended rather to be confined to those arising under the Act of 1958 (See e. g., per Taylor, J. at 326). The difficulties encountered by experienced counsel in framing special pleas to raise common law privileges in that case would seem to indicate that such a burden on defendants is unduly onerous and the doubts expressed by judges as to whether the rule was intended to apply in such case may well indicate the judges' feelings that the rule was inappropriate to such a situation. We therefore incline to recommend (See infra para. 208) that the common law and statutory defences of qualified privilege available may be raised under a plea that the occasion was one of qualified privilege - subject to particulars being provided of the facts relied on, and similarly with regard to fair comment.

80. By s. 3(3) of the Defamation Act, 1958 it is provided that "the repeal of any enactment by this Act shall not be construed as limiting the power of a court or judge to direct either party to an action to give particulars or further particulars of his claim or defence or of any pleadings or the damages claimed". This provision was in the Bill for the Act on Government initiative at the stage of its passage through the Legislative Council, at the request of the New South Wales Bar Association (New South Wales Parliamentary Debates (Session 1958) 2,293-5). The reason was that the provision in the 1958 Act for the defence of justification did not contain any provision corresponding to that of the repealed Act of 1912 in relation to such defence that it was necessary in his plea for the defendant to allege the particular fact or facts by reason whereof it was for the public benefit that the matters charged should be published (Defamation Act, 1912, s. 7). In view, however, of the decisions emphasizing the inherent power of the court to require particulars we do not expect to recommend a provision corresponding to this one in the proposed Defamation Act, 1969.

THE DEFINITION SECTION (SECTION 4)

81. The definition of the term "Broadcasting station" is relevant to the definition of "licensee" in s. 4 itself, to ss. 14(1) and 14(3) providing for the reports of judicial proceedings to be protected only if contemporaneous, and to s. 37 providing for certain officers of broadcasting and television stations to be protected against criminal proceedings. If our anticipated recommendation that s. 37 should not be re-enacted (Infra, para. 251) is accepted the definition of "licensee” (which term appears in s. 37 only) will become otiose and we would expect to recommend its exclusion from the definition section of the proposed Defamation Act, 1969. The definition of "Broadcasting Station" would need to be retained.

82. We expect to recommend a drafting alteration in the definition of "Broadcasting Station" to provide for the possibility of amendments to the present Commonwealth licensing Act or substitution of a different licensing Act. While the New South Wales Interpretation Act, 1897 makes provision for the contingency of repeal and reenactment, with or without modifications, of a New South Wales Act referred to in a New South Wales Act, and while the Commonwealth Acts Interpretation Act makes provision by ss. 10 and 10A for the contingency of amendments, and repeals and re-enactments, of Commonwealth Acts referred to in Commonwealth Acts, neither Act apparently makes provision for these contingencies in the case of a New South Wales Act referring to a Commonwealth Act, as here. For the words "under Part IV of the Broadcasting and Television Act 1942-1956 of the Parliament of the Commonwealth" we propose to recommend that there be substituted the words "under Part IV of the Broadcasting and Television Act 1942-1967 of the Parliament of the Commonwealth or other legislation for the time being in force dealing with the same subject matter". The term "Television Station" occurs in the same sections of the Act and is defined along the same lines as the term "Broadcasting Station". The comments in this and the preceding paragraph therefore apply.

83. The definition of the term "indictment" is relevant to s. 26 (unlawful publication of defamatory matter), s. 27 (publishing or threatening to publish defamatory matter with intent to extort money, etc.), s. 30 (costs in certain cases of defamation), s. 31 (evidence of defences admissible in committal proceedings) and s. 42(2) (obscene or blasphemous libels). Of these s. 26 (Infra paras. 244-247), s.30 and s. 31 (Infra para. 251) are not proposed for re-enactment but this definition would be in any case relevant to the remaining sections. In the present Defamation Act the draftsman has generally thought it worthwhile where different grammatical forms of the same word are used to make provision for this in the definition section so that, for example, after the definition of "publication", there appears provision that the expressions "publish", "publishes" and "publishing" have interpretations corresponding to that of publication (s. 8(2)). The word "defame" is also by s. 7 in effect given a meaning corresponding to "defamatory" as defined in s. 5. If ss. 30, 31 and 32 were not repealed, consideration would need to be given to including a phrase in the definition of "indictment" to the effect that the terms "Indicted" (which appears in s. 30) and "indictable" (which appears in ss. 31 and 32) should be given corresponding meanings to "indictment". Since, however, we do not expect to recommend retention of ss. 5 and 7 in which the practice is at present observed (Infra paras. 88-99 and 110-111) and we think the practice a work of supererogation we expect to recommend that the definition of "indictment" be continued unaltered. It is identical with the provision defining "indictment" in the Crimes Act (s. 4).

84. The term "jury" occurs in s. 23 (consolidation of actions) and s. 29 (general verdict on charge of defamation). The latter provision may be recommended for repeal without re-enactment (Infra para. 252) and the second paragraph of s. 23 may also be recommended for repeal. Since, however, some of the provisions we propose to recommend include the word we propose that the definition be retained. It is virtually identical with the definition in s. 3 of the Defamation Act, 1912.

85. The term "periodical" occurs in s. 4, ss. 14(1) and 14(3), ss. 22, 25, 34, 35, 36, 38 and s. 39. Since a number of these sections will probably be proposed for re-enactment with or without modifications we expect to recommend the retention of the definition.

86. The term "proprietor" occurs in s. 25 (disclosure of name of writer of article) and s. 34 (criminal responsibility of proprietor etc. of a periodical). We expect to recommend that the latter provision be repealed and not re-enacted (Infra para. 251), and we may not recommend retention of the former (Infra paras. 241-243). We therefore may not recommend retention of the definition. It is verbally adapted from the word "proprietor" defined in relation to newspapers in s. 3 of the Defamation Act, 1912 so as to be related instead to the term "periodical".

87. In addition to the matters of interpretation arising out of the present Act dealt with above we would propose to insert an interpretation section applying the pleading provisions worked out in terms of Supreme Court procedure in the body of and Second Schedule to the proposed Act to the District Court, with provision in the case of the latter for amendment by the ordinary method of District Court rules so far as their application to the District Court is concerned.

88. This section defines as defamatory matter imputations which carry one or more of certain likelihoods of harm to a person, provided they are imputations concerning him "or any member of his family, whether living or dead". We have referred (Supra para. 16) to the representations addressed to us about the inhibiting effect of the quoted words upon historical research resulting from fear of the possibility of actions for defamation by living descendants of historical figures. In our view, however, it is unlikely that it would be held that this provision changed the law at all, insofar as words damaging to reputation in the ordinary sense are concerned. Nevertheless, having regard to the actual existence of the fears to which we have referred and the unfortunate fact that nothing has occurred to resolve these doubts since 1958, we expect to recommend that steps be taken to make it clear that there has been no change to the common law in this respect. The means we propose to recommend for this purpose are dictated by the considerations that, in the first place, we regard the changes which have undoubtedly been made by this section to the common law in other respects as undesirable (See infra paras. 95 to 97) and, secondly, wishing as we do to recommend a return to the common law position, we do not consider it desirable to attempt to reduce the common law position to statutory form for reasons given in general terms above (Supra para. 68) and developed below in relation to the present subject matter (Infra paras. 98 and 99). We therefore expect to recommend the repeal of s. 5 and that no provision be substituted for it.

89. Such uncertainty as exists about the operation of s. 5 in relation to defamation of the dead derives mainly from two assertions by distinguished former judges of the High Court of Australia, the first Chief justice, Sir Samuel Griffith, the architect of this provision, and Mr Justice O'Connor, to the effect that the provision introduces a change in the law. Mr. Justice O'Connor described the change as novel and important (Hall-Gibbes Mercantile Agency Ltd. v. Dun (1910) 12 C.L.R. 84 at 103). Yet Mr. Justice O'Connor gave no reasons and the reasons Sir Samuel Griffith gave in introducing the provision in the Queensland Parliament in 1889 as part of the Law of Queensland (57 Queensland Parliamentary Debates (1889) 735) do not appear to us to substantiate the view that the law was changed. The example Sir Samuel Griffith gave of the kind of imputation which would be rendered unlawful was that a man was the child of incest. Yet this kind of allegation is one of the earliest to be recognised as slanderous at common law (See the citations 3 Sydney Law Review at p. 21). In spite of the assertions which Sir Samuel and Mr Justice O’Connor make, no answer has been found to the question how it is possible for an imputation to reflect on the plaintiff’s reputation, which is the kind of statement on which Sir Samuel and Mr. Justice O'Connor envisaged the provision operating, and yet not be defamatory at common law. Recently Mr. Justice Walsh described the contention that there was no change effected by this provision as having "some force" (Address for the Council for Advanced Legal Studies of the New South Wales Bar Association "The Defamation Act, 1958 and the Common Law" p. 3). The view that the law was not changed has also been expressed in correspondence with the Commission by a member of the Supreme Court Bench.

90. In the course of his statement that the clause relating to imputations on one's family introduced a change in the law Sir Samuel Griffith said that this change represented the law in India, on the 1860 Penal Code of which country Sir Samuel based a number of provisions of his legislation. Reference to this more remote source of the present New South Wales provision fails, however, to cast any light oil what innovation might be involved in the provision. The Indian Penal Code of 1860 (s. 499) refers to "imputations concerning any person" without inclusion of the alternative provided in Sir Samuel Griffith's bill of imputations concerning a member of his family, and the Code goes on to specify that there must be an intent to harm, or there must be reason to believe that the imputation will harm, the reputation of that person. Reference to the family situation in the Indian Penal Code appears only in Explanation 1 attached to the section that "It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives". If in these circumstances the living members of the family were regarded as defamed this would certainly be at variance with the common law, where hurt to the feelings is only a head of damages arising out of an attack on the reputation of the person suffering the hurt feelings. But to apprehend that the draftsman of the Indian Penal Code meant by his explanation to suggest this would seem to be inconsistent with the manner in which he framed the section itself, in which reflection on reputation is made essential to defamation.

91. No representations were addressed to us that, on the assumption that the present law gives no protection to the family whose feelings may be hurt by the defamation of deceased relatives, some provision should be made to enable the family to obtain legal protection for their interests in this respect, whether by extending the conception of defamation for the purpose of by direct provision to provide compensation for hurt feelings. Thus directly or indirectly to recognize hurt feelings as a ground of liability, rather than a head of damage where there is a distinct ground of liability, would be a new departure in the feel of tort. Professor Fleming points out that only in the case of assault has legal protection for emotional disturbance been ready to dispenser with the requirement of proof of a different legal injury than emotional disturbance itself as a safeguard against fabricated and trivial claims (J.G. Fleming, Introduction to the Law of Torts (1967) 51). In addition to the problem of determining how much harm to the feelings has really resulted, Professor Fleming refers to the oppressive burden on human activity which would result from the recognition of such claims as all explanation of the prevailing refusal to recognize them. Since in the present context we have received a body of evidence that the activity which would be suppressed is cultural activity important to the community, we do not expect to recommend that steps be taken to provide such protection. The point is elaborated in the report of Lord Porter's Committee in refusing to recommend any extension of civil or criminal proceedings to prevent defamation of the dead. "Historians and biographers" runs the report "should be free to set out facts as they see them and to make their comment and criticism upon the events which they have chronicled". The report adds that "to produce the strict proof of the statements contained in their writings which the English law of evidence requires, becomes increasingly difficult with the lapse of time" and concludes that "if those engaged in writing history were compelled, for fear of proceedings for libel, to limit themselves to events of which they could provide proof acceptable to a Court of law, records of the past would, we think, be unduly and undesirably curtailed" (Cmd. 7536 (1948) p. 11). With all this we are disposed to agree.

92. As well as considering the possibility of civil proceedings by relatives of deceased persons, and criminal proceedings arising out of the defamation of the dead, Lord Porter's committee briefly discussed the Law Reform (Miscellaneous Provisions) Act, 1934, saying that it recognised the essentially personal character of a man's right to his reputation and of the action for defamation by excepting actions for defamation from those categories of personal actions which survive for the benefit of the estate of the plaintiff. The committee did not think that a sufficient case had been made out for a departure from this principle (Ibid.). The corresponding provision in New South Wales is s. 2 of the Law Reform (Miscellaneous Provisions) Act, 1944 and, like the English legislation referred to by Lord Porter's committee, it has a double aspect in excepting actions for defamation from the survival provisions of the Act both in case the defamed person dies and in case the defamer dies. Insofar as the damages which might otherwise be recoverable would represent hurt to the feelings of the defamed person or be given for the punishment of the wrongdoer the propriety of preventing the action from surviving seems clear, and it may be difficult to separate the element of damage constituting solatium for loss of reputation from these. In any case it would seem inappropriate to provide the relatives of a defamed deceased with the deceased's solatium. What is, however, more questionable in the operation of the Act on the survival of defamation actions is its application to the case where the defamation has caused actual loss in the sense of the sort of special damage required normally in actions on the case. There seems no reason why financial loss caused by wrongful defamation should become irrecoverable from the estate of the wrongdoer after the wrongdoer dies. Nor does there seem any reason why this kind of loss should become irrecoverable by the estate of the person defamed because the person defamed dies, the result of which may be that the estate is left diminished to the prejudice, for example, of trade creditors of the deceased or of the family of the deceased.

93. In some circumstances the difficulties caused by the death of a prospective plaintiff or prospective defendant in an action for defamation may be avoided for the reason that the action for injurious falsehood is not excluded, as is the action for defamation, from the survival provisions of the Law Reform (Miscellaneous Provisions) Act, 1944 (See Hatchard v. Mege (1887) 18 Q.B.D. 771). By ignoring the defamatory character of the words the action may be framed as injurious falsehood, but as well as special damage it will have to be proved that the words were both malicious and false. Apart from these onerous conditions for success in an action for injurious falsehood Hatchard v. Mege (supra) seems to leave it doubtful whether it is permissible to use the action where the harm caused by the defamatory words is through the medium of damaging reputation or whether it is available only where the words have an independent aspect which cause damage in another way (Id. at 774-5 per Day, J.). In order to prevent the unfair burden which proceeding for injurious falsehood would involve, and in order to avoid the litigation which might arise out of the uncertainty to which we have referred, we expect to recommend that the Law Reform (Miscellaneous Provisions) Act, 1944 be amended by the addition of the following subsection to section two:

"2.(IA) Notwithstanding the proviso to the preceding subsection the provisions of this Part for the survival of actions shall apply to actions for defamation where special damage is proved but so as to enable recovery of that special damage only.

94. We have referred (Supra para. 17) to representations made at different times, though only by one body to this Commission, that imputations concerning a group should be the subject of defamation proceedings. We have considered both whether criminal proceedings might be framed to deal with the matter and whether it would be appropriate to allow a member of the group to take civil proceedings where there was an imputation upon the group. We incline to feel, however, that it would not be appropriate to recommend any extension of liability beyond the circumstances in which criminal proceedings may be taken for seditious libel, or civil proceedings may be taken under the common law as interpreted by the High Court of Australia in Godhard v. Inglis ((1905) 2 C.L.R. 78) and David Syme v. Canavan ((1918) 25 C.L.R. 234). It is there made clear that if what is said about a group would in the eye of the reasonable man be regarded as reflecting on the plaintiff, it is not necessary that the defendant should have intended to refer to the plaintiff individually. We tend to find ourselves here in the same position as Lord Porter's committee who found that no suggestion had been made for reform in this field which would not inhibit proper criticism of particular groups or classes of persons (Cmd. 7536 p. 11).

95. Apart from its specifications of the persons concerning whom imputations must be made in order to render them defamatory (which we have considered in the previous paragraphs) s. 5 of the Defamation Act, 1958 specifies the further condition that one or more of three results must be likely as a result of the imputation. Two of these are not apparently different from the common law and are reserved for later comment (Infra paras. 98 and 99). The third kind of imputation is that by which a person is likely to be injured in his profession or trade. There is the authority of the High Court of Australia for the view that this provision extends the statutory conception of defamation beyond that existing at common law, so that reflection on the plaintiff's reputation is unnecessary and statements such as that the plaintiff has gone out of business are actionable as defamation (Hall-Gibbs Mercantile Agency v. Dun (1910) 12 C.L.R. 84). The exact limits of the operation of this provision beyond the traditional field of defamation were, not settled by the High Court case referred to, and remain. The continuing doubts may be illustrated by reference to this- kind of imputation which may be the subject of “slander of goods” or “disparagement of property”. In the High Court Sir Samuel Griffith considered that it would be time to settle this matter when it arose (Id. at 94), Mr. Justice O'Connor believed that liability for slander of goods was within the conception of slander of title (Id. at 104) and therefore excluded from the conception of defamation by another section of the Act (In the Defamation Act, 1958 this is s. 42), while Sir Edmund Barton believed that the excluding section referred only to slander of title in a narrow sense which presumably would not include slander of goods (Id. at 98).

96. Until recently the obscurities of this provision had not provoked litigation in New South Wales since the commencement of the 1958 Act, the only reference to it being a passing remark by Mr. Justice Walsh that the Court was not concerned to say in Clines v. Australian Consolidated Press Ltd. ((1965) 83 W.N. (Pt. 2) 299 at 303) whether or not that was a case within the conception of common law defamation. As this material is being written, however, an appeal is being taken to the Court of Appeal concerning an obscure aspect of the provision. At common law matter was not defamatory of a person unless it would reflect on him in the eye of the general community (Miller v. David (1874) L. R. 9 C.P. 118). It was, however, argued under the Queensland model of the present section that if something was likely to damage the plaintiff's reputation among a particular special group and thereby damage him in his profession, e.g., as a parliamentarian representing the group, this was defamatory within the Statute. According to the headnote of the case this argument was rejected by the Queensland Full Court (Queensland Newspapers Pty. Ltd. and Hardy v. Baker (1937) Q.S.R. 154). There are, however, some passages in the judgments which suggest the contrary (Id. per R.G. Douglas, J. at 156, per Webb, J. , at 164 and per Henchman, J. at 178-9). It is against this background that the holding (of Collins, J. in Murphy v. Australian Consolidated Press Ltd., 24th November, 1967) that the words must be defamatory in the eyes of the reasonable man, is being challenged before the Court of Appeal.

97. Whether or not the Court of Appeal has an opportunity of clarifying this aspect of the meaning of the provision, we would recommend that this part of the section be repealed along with the rest. For proper grounds of criticism of the section include not only a number of which the present subject of litigation is only an example, but also, firstly, the manner in which it throws open to the award of damages on a broad basis matter which does not constitute an attack on the ptainliff's character and at common law is thought to be a proper matter only for the award of the damage actually caused, and, secondly, the manner in which the provision throws the burden of proving the truth of such matter on to the defendant whereas at common law the burden of proving falsity in such circumstances is on the plaintiff. Whatever is the present legal position regarding the assumption to be made about the truth or otherwise of defamatory matter in litigation where there is no plea of justification, the fact remains that there is a broad community principle of justice that a man is entitled to be thought of good reputation until the contrary is shown. But the same principle of justice cannot be appealed to to support the view that anything that may cause a fall in a man's profits must be considered untrue until the contrary is proved. And we have seen no argument to support such a principle having regard to the indefinite burden it involves for freedom of discussion of financial and economic matters.

98. Apart from the likelihood of injury to trade or profession the Defamation Act, 1958, s. 5 makes imputations defamatory if they are ones by which the reputation of a person is likely to be injured or "by which other persons are likely to be induced to shun or avoid or ridicule or despise him". These are the conceptions which we have said above (Supra para. 95) apparently reproduce the common law conception of defamatory matter. But while the similarity of the language to that used to refer to the common law may well lead the courts to interpret these provisions as not in themselves making a change in it, even this cannot be regarded as clear beyond question. Regard must be paid to Mr. Justice Walsh's reminders of the principles of interpretation of code provisions demanding that the words be assessed independently of any presumption of intention to preserve the common law (referred to supra para. 69). We have referred (Supra para. 13) to the representation made to us that it was unreasonable that general damages should be given for a mere likelihood of injury, and at all events this objection points to a possible source of obscurity. At common law the mere fact that the words are unlikely to harm the plaintiff's reputation or bring him into contempt in the circumstances will not affect the defendant's liability. Thus in Theaker v. Richardson ((1962) 1 W.L.R. 151) the words were published only to the plaintiff's husband, who knew they were not true, yet substantial damages were given for defamation. It is reasonably clear that the statutory definition cannot mean likelihood in relation to the precise circumstances, or the provision of a special defence by s. 20, for the case of words not intended to be read which are on an occasion when the person defamed was not likely to be injured thereby, would apparently be unnecessary. At common law the question is the defamatory tendency of the words, and if s. 20 of the Defamation Act is not to be rendered otiose, it seems that "likelihood" must be given the meaning of "tendency", despite its apparent inaptitude for this purpose in view of the impression it normally conveys of a weighing of all possibilities. If the word "likelihood" is appropriate at all in this context to describe the common law position its application seems to be properly limited to the question of how the words may be understood rather than the damage which may be done. This appears in Lord Selborne's definition that "the test, according to the authorities is, whether under the circumstances in which the writing was published, reasonable men, to whom the publication was made, would be likely to understand it in a libellous sense" (Capital and Counties Bark Ltd. v. Henty and Sons (1882) 7 App. Cas. 741 at 745).

99. Lord Selborne's definition calls attention to the fact that there is no explicit prescription in s. 5 that, even apart from the special problem where likelihood of injury to trade or profession is claimed, the words must be injurious to the plaintiff in the eye of the reasonable man. The section may therefore conceivably contemplate likelihood of injury through the reactions of persons with particular prejudices, contrary to the common law position. To remove this obscurity as well as the others we have noticed, as well as any others which may arise in relation to future developments of the common law which judicial, experience may bring to light, we expect to recommend that this part of the section be repealed along with the rest of the section and the whole matter of what constitutes defamatory matter left to common law exposition which is for this State the traditional manner of dealing with it. We later suggest means to prevent this repeal from undesirably restricting the circumstances in which an injunction may be obtained to restrain harmful falsehoods (Infra para. 265A).

FUNCTIONS OF JUDGE AND JURY (SECTION 6)

100. This section provides that "the question whether any matter is or is not defamatory is a question of fact" and "the question whether any matter alleged to be defamatory is or is not capable of bearing a defamatory meaning is a question of law". This disposition of the first question to the jury and the second question to the judge accurately reflects the present common law position. This is clearly set forth in recent decisions of the Privy Council on appeal from this State (Jones v. Skelton (1963) 1 W.L.R. 1362 at 1376) and the House of Lords (Lewis v. Daily Telegraph (1964) AC. 234). We see no point in including the rule in a statute in what is a necessarily less explanatory form than that in which it appears in these and many other judgments. If therefore our anticipated recommendations for changes in the law on this matter appearing in the immediately following paragraphs are unacceptable, we would expect to recommend that this section be repealed without any substitution being made for it.

101. We have referred (Supra para. 38) to the various representations made for the limitation of the functions of the jury or its abolition. If the most sweeping of these views were adopted, that juries in defamation cases should be abolished, or that they should decide only questions of the quantum of damages and not of liability, the problems of division of functions between judge and jury in determining the defamatory character of matter would not arise. We do not, however, expect to recommend either of these courses, for we incline to consider that depriving the jury of a voice in this respect would mean abandoning a centuries old constitutional principle which has done well the work that it was designed to do. This was to ensure that when the allegedly defamatory matter might criticise those in authority the defendant would have a tribunal to which to appeal which formed no part of the ordinary governmental structure (See supra para. 61). We nowadays hear no complaints of oppression in defamation suits of the lowly placed by the highly placed. Even though the risk of such oppression in these times may be considered infinitesimal, the preservation of the guarantee laid down in the first place by Fox's Libel Act, 1792 and its extension to civil cases preserves the notion that the laws should be a guarantee of liberty not only against ordinary contingencies but against the extraordinary pressures of ill times. "For two centuries," says R.F.V. Heuston of that Act "this has been regarded as a victory for the liberties of Englishmen" ("Recent Developments in Defamation" The Irish Jurist, 1966 247 at 269). Heuston continues in some puzzlement that the freedom of the Press has been thought to be based upon the common jury, but, for reasons which are not too clear, both the Press and the jury now hold different opinions about the value of the work done, by the other. "It is indeed paradoxical," he concludes "to find the Press advocating a return to the law and practice of the early years of George III." We would suggest that the explanation of the paradox may well be that the jury has in earlier times fulfilled its intended function so well in the respect aimed at by the Act that the function itself has been forgotten. Meantime discontent has developed with the institution of the jury as a result of preoccupation with a different problem.

102. This different problem is itself old enough to have been noticed by Plato when he contrasted democracy unfavourably with oligarchy on the basis of the tendency of the former to produce oppression of minorities by the masses and new enough to cause the liveliest concern to the United States Supreme Court when popular feeling in the South displayed itself through the jury in savage reprisal against a New York newspaper seeking to publicise a minority case (New York Times v. Sullivan referred to supra paras. 6, 29, 32 and 61). In our own community, as in the United States, we seek the solution to this kind of problem through the concept of a liberal democracy, of popular rule coupled with the cultivation of a spirit of mutual tolerance supported where appropriate by legal guarantees collectively embodied in the notion of the rule of law. We believe that the problem in the present context is not to devise but to restore legal guarantees which will protect against the potentialities of popular tyranny involved in the jury system while preserving the system in its traditional role of a popular bulwark against the potentialities of other kinds of tyranny. We believe that the solution to the problem of what the rule of law demands in this context and English law once provided has been propounded by Lord Blackburn, a judge whose claims to preeminence among the common lawyers of the late nineteenth century would be widely recognized. We have sketched his view in our historical survey (Supra para. 61) and now make a more detailed exposition of it.

103. Lord Blackburn explains (in Capital and Counties Bank v. Henty (1882) 7 App. Cas. 741) that from the earliest times it has, by the law of England, been the province of the court to say whether words published in writing were a libel or not. To enable the court to judge, the words themselves had to be set out in the declaration or indictment (Id., at 771). If there were circumstances relating to the publication which it was alleged caused the words to bear a more extended sense than they would otherwise do, the law was that these must be stated on the record, in order to enable the court to judge whether the words understood with those circumstances bore that more extended sense (Id. at 772). In the Case of the Dean of St Asaph. (R. v. Shipley (1784) 4 Doug. 73) Lord Blackburn continues, there was a disagreement between Lord Mansfield and Mr. Justice Willes, Lord Mansfield's view being that the whole question of libel or no libel was for the Court, and Mr. Justice Willes believing there was also a question for the jury. In Lord Blackburn's view, however, while Mr. Justice Willes considered that if the jury found in the defendant's favour this was conclusive, he also held that if they found in the plaintiff's favour it was still open for the defendant to take, the opinion of the Court as to whether the publication was libellous or not, not merely as to whether it was capable of libellous meaning (7 App. Cas. at 773). In Lord Blackburn's opinion the legislature in passing Fox's Libel Act subsequently intended to give effect to the first of Mr. Justice Willes' judgment, but had no intention to put the defendant in a worse position than before. It would have been injudicious in Lord Blackburn's view, to have done so for, as he said, although juries were more often excited in defendants' favour they could be excited against them (Id. at 775). Lord Blackburn's conclusion as to the law in his own time was that "if the defendant can get either the Court or the jury to be in his favour, he succeeds" but "the prosecutor, or plaintiff, cannot succeed unless he gets both the Court and the jury to decide for him" (Id. at 776).

104. It will be seen that Lord Blackburn's interpretation of the law was given with full alertness to the possibility of inflammation of juries against defendants as well as the importance of preserving the jury's role as a defence. His interpretation of the law, presented as the historical solution to the problem of providing legal guarantees for two different vital interests of the community, commends itself to us as at present advised as appropriate for restoration. We do not consider that his views have ever been satisfactorily met and answered either from the point of view of substance or history. Yet the swing of the law from the position he took to the position which now exists has left the defendant with substantially less protection. Words have a defamatory meaning if they would lead a reasonable man to think less of the plaintiff, they are capable of a defamatory meaning not only if they would lead reasonable men to think less of the plaintiff but also if there could be a reasonable difference of opinion on that matter. If the plaintiff can succeed in throwing the defamatory character of the words seriously into question, the defendant can no longer receive any protection from the judge on the issue of defamatory character of the words. It is this somewhat insubstantial thread of legal protection for the defendant that the plaintiff in Jones v. Skelton succeeded in cutting at Privy Council level ((1963) 1 W.L.R. 1362) after the Full Court of the Supreme Court of New South Wales had held in the defendant's favour ((1961) 78 W.N. 873). The subsequent bankruptcy of the defendant testifies to the importance which the matter may assume on occasion (See supra para. 9).

105. The reasons for the failure of Lord Blackburn's views to hold their ground are not clear. Having regard to the broad questions of freedom under the law which Lord Blackburn considered to be involved in his extensive and wide ranging judgment, it might have been expected that any abandonment of the view he supported would be preceded by an equally extensive consideration of the subject. Yet such does not seem to have taken place. In Capital & Counties Bank v. Henty itself he was supported by the majority of his colleagues, as to which matter Gatley points out (Libel and Slander 6 ed. 1967 at p. 70) that "all the judgments in this case, except that of Lord Selborne, should now be read subject to the cautions contained in the speeches of Lord Porter in Turner v. Metro-Goldwyn-Mayer (1950) 1 All E.R. at p. 454 and Lord Reid in Lewis v. Daily Telegraph (1964) A.C. at 259" and accordingly to the extent that they go further than assigning to the judge the task of determining capability of defamatory meaning are no longer of authority. The judgment of Lord Halsbury in Nevill v. Fine Arts Co. (1897) A.C. at p. 72) supports Lord Blackburn and is made the subject of a similar comment in Gatley (at p. 68). If we turn to the comments on Lord Blackburn's view cited by Gatley we find that Lord Porter says that "the question of libel or no libel should have been left to the jury if it cannot be said that twelve men could not reasonably have come to the conclusion that the words were defamatory" ((1950) 1 All E.R. 449 at 454). Lord Porter adds "This, I think, is what Lord Blackburn means in his observations in Capital and Counties Bank v. Henty". For our part we do not believe it is at all possible to take this view of Lord Blackburn's judgment, which we have recounted above. Turning to Gatley's other source, Lord Reid's remarks in Lewis v. Daily Telegraph Ltd. ((1964) A.C. 234 at 259), we find Lord Reid saying on this subject that "the speeches of Lord Blackburn and Lord Watson could be read as imposing a heavier burden on the plaintiff" and lie adds merely "but I do not think that they should now be so read". If we may speculate on the reasons for the drift, without extended discussion, from Lord Blackburn's view it may be suggested that the position has simply been assimilated to other torts such as negligence in which the House of Lords defined the position of the judge and jury, along the lines at present laid down for defamation cases, at about the time Capital and Counties Bank v. Henty was decided (See Metropolitan Railway v. Jackson (1877) 3 App. Cas. 193). If this is the cause of what has occurred, we may comment that there are special considerations involved in the law of defamation which Lord Blackburn was at great pains to indicate.

106. Some difficulties in the implementation of Lord Blackburn's views have to be faced. Lord Blackburn envisages that counsel. may request the trial judge to withhold the case from the jury, not merely because the words are not capable of a defamatory meaning, but because they are not defamatory. If the judge decides that they are not, then the matter will never become one for the jury, but if he decides that they are, then it may be extremely difficult to ensure that the jury exercises that independent judgment which the health of the system requires. The jury may be overawed by respect for the judge and merely confirm his view that the words are defamatory without further thought. While, however, the importance of this problem may be acknowledged, it is to be observed that- representations have been made to us and elsewhere that to some degree the problem exists already. It is urged that when the judge decides that words are capable of a defamatory meaning the holding exerts an influence towards inducing the jury to come to the conclusion they are defamatory and therefore it is claimed the argument before the judge should be in the absence of the jury (Supra para. 38). If this kind of arrangement needs to be made in any case, the difficulties associated with implementing it cannot be assigned as a particular objection to an innovation incorporating Lord Blackburn's views.

107. In speaking of the allocation of functions between judge and jury in relation to the matter of qualified privilege, Mr. Justice Walsh draws a distinction between "subordinate" and "ultimate" questions (Address for the Council for Advanced Legal Studies of the New South Wales Bar Association "The Defamation Act, 1958 and the Common Law" p. 10) and we may adopt this terminology for the purpose of discussing a further problem in implementing Lord Blackburn's views. Strictly the "ultimate" question in determining the defamatory character of matter is the question of how a reasonable man would evaluate the matter in terms of inferences to be drawn from it and the application of legal standards of defamation. This ultimate question can only be attacked once it has been determined what the words mean, which latter is treated by Lord Blackburn as a subordinate question exclusively for the jury. But the determination of the meaning of the words may in turn involve attention to particular facts which colour the meaning in the circumstances, and the determination of these facts is a further order of subordinate question. This last set of subordinate questions has always been a matter for the jury and before 1852 the findings of the jury on them were patent on the record at the end of the case is material for the court's consideration on a motion in arrest of judgment. For the plaintiff had to allege in a prefatory averment the special facts he needed to prove to support the meaning he alleged in any true innuendo. By s. 61 of the Common Law Procedure Act, 1852 (s. 72 of the Common Law Procedure Act, 1899 (N.S.W.) discussed supra para. 72) however, the need for a prefatory averment was dispensed with and the pleading no longer set out the facts required to support the innuendo. The result was that a motion in arrest of judgment ceased to be an appropriate procedure for determining libel or no libel in cases where there was a true innuendo, for the material for determination was no longer on the record. Lord Blackburn says that, nevertheless, "when the proof is complete, and all that can be properly found on that proof in favour of the plaintiff is found for him, the Court have, I think, exactly the same power which they had before" (Capital and Counties Bank v. Henty (1882) 7 App. Cas. 741 at 782). The difficulties of an Appeal Court in knowing what the jury found on this sort of subordinate question are increased and the difficulties of the trial judge in making his concurrent determination on the ultimate question while leaving the subordinate questions if they arise exclusively to the jury are likewise increased. It will be necessary to recommend procedures to deal as efficiently as possible with these complications, but we do not expect to recommend the restoration of the prefatory averment (Infra para. 285).

108. A further objection to Lord Blackburn's view may be urged to the effect that it may bring the Court and jury into sharp and apparent conflict about the same issues, as where the trial judge, having determined that the matter is to be regarded as defamatory if appropriate findings of fact are made, submits the issue of defamation to the jury who find for the plaintiff, and subsequently on appeal it is determined that the matter was not defamatory on any facts it was open to the jury to find. If, however, this confrontation between appeal court and jury is regarded as unedifying, it should be recalled that what are in effect sharper confrontations are possible under the present interpretation of functions. In Jones v. Skelton the jury found that the matter was defamatory, the Full Court of the Supreme Court of New South Wales decided that this was a conclusion to which no reasonable men could come ((1961) 78 W.N. 873) and the Judicial Committee determined that the jury's was a conclusion to which reasonable men could come ((1963) 1 W.L.R. 1362). It does not seem, therefore, that the proposals at present being Considered should be rejected on this ground.

109. We therefore incline to recommend that in place of the present s. 6, the repeal of which we recommend, a section should be enacted as part of the proposed Defamation Act, 1969 in the following terms:

(1) Subject to the next succeeding subsections, the question whether any matter is or is not defamatory when it arises otherwise than in summary proceedings is a question of fact.

(2) The trial judge may be asked at any time from the close of the plaintiff's case until after the jury's verdict for a determination that the words are not defamatory and the judge may grant or refuse or defer such determination to any point of time until after the jury's verdict and the effect of the judge's holding on the question whether the words are defamatory shall be the same as a holding at common law on the question whether words are capable of a defamatory meaning.

(3) in the determination of the issue referred to in the last preceding subsection the judge shall treat the question whether matter of ascertained meaning is defamatory or would give rise to defamatory inferences on the facts as ascertained as a question of law but shall treat disputed questions of particular fact going to such ascertainment as questions for the jury's special determination or for implication from its general verdict as appropriate.

(4) The determination referred to in subsection (2) and argument on it shall be in the absence of the jury and shall not be made the subject of reference or comment by counsel.

(5) The determination referred to in subsection two shall be subject to appeal in the same manner as any other question of law.

(6) The powers given to the judge an(] appellate court by this section shall be without prejudice to the power of such judge and appellate court to hold matter incapable of a defamatory meaning.

DEFINITION OF DEFAMATION (SECTION 7)

110. Section 7 provides that "a person who, by spoken words or sounds, or by words intended to be read either by sight or touch, or by signs, signals, gestures, or visible representations, publishes any defamatory imputation concerning any person is said to defame that person". Introducing what is substantially this provision (the New South Wales provision follows the slightly amended version in the Queensland Criminal Code of 1899, s. 368) in the bill for the Queensland Defamation Law of 1889, Sir Samuel Griffith said of it: "That is the law at present" (57 Queensland Parliamentary Debates (1889) 735). The definition follows the classifications of the Indian Penal Code, 1860, which refers to imputations "by words either spoken or intended to be read, or by signs or visible representations" (s. 499). The function of the definition is, however, different in the Indian Penal Code, for having defined by the section the circumstances in which a person is said to defame another, that Code proceeds immediately to provide by the next section that "whoever defames another shall be punished" as specified (s. 500). In the New South Wales Act of 1958, which follows Sir Samuel Griffith's drafting of the Queensland Act, the relationship of the sections is more complicated and gives rise to possible sources of obscurity for the reasons more particularly discussed in the next paragraph. Since the apparent object is only to state the common law there seems no object in the existence of the section if the terms chosen may be productive of dispute which the common law itself would not generate. We therefore expect to recommend the repeal of the section along with the others (s. 5 dealt with supra paras. 88 to 99 and s. 8 dealt with infra paras. 112 to 116) with which it forms a pattern of definition.

111. The civil wrong of defamation is constituted by s. 10 of the Defamation Act, 1958, which states merely that "the unlawful publication of defamatory matter is an actionable wrong", while the crime is constituted by s. 26 subjecting to punishment "any person who unlawfully publishes any defamatory matter concerning another". It will be seen that the concept of defaming a person as defined in s. 7 enters directly into neither the description of the tort nor the crime, for "defamatory matter" is quite independently defined by s. 5. The notion of defaming a person as developed in s. 7 enters indirectly, however, into the concepts of the tort and crime for they involve publication, and by s. 8 "publication" is defined as consisting of various kinds of acts in relation to persons "other than the person defamed". Publication, then, is dependent on the existence of a person defamed. And for a person to be defamed under s. 7 there must be a defamatory imputation concerning him. At this point a discrepancy appears between s. 5 and s. 7 for under s. 5 matter may be defamatory if it is an imputation concerning the person of whom it is defamatory "or any member of his family, living or dead". Even, therefore, if we could give effect to the quoted words in s. 5 by discovering matter which would be an imputation concerning the family without being an imputation concerning the person whose reputation or trade was affected, he would not be a person defamed within s. 7. Hence, as far as he was concerned, there would be no publication and apparently there could be no action by him nor even criminal proceedings based on the effect on his reputation or trade. We do not see any purpose to be served by preserving the sections which appear to lead in combination to such self-defeating conclusions.

PUBLICATION (SECTION 8)

112. The Indian Penal Code, 1860 did not define publication. Sir Samuel Griffith derived the definition in the Defamation Law of 1889, which is the forbear of that in the present section, from a code of criminal laws which was proposed in 1879 and submitted to the United Kingdom House of Commons, but never went any further (57 Queensland Parliamentary Debates 734 and 735). In the terms in which Sir Samuel originally adopted it, the section sought to set out exhaustively the particular modes of communication which would constitute publication. The version which replaced it in the Queensland Criminal Code, 1899 (s. 369) was less specific, providing in the case of the making of signs, signals or gestures that there should be publication if they should be seen or felt by or "otherwise come to the knowledge of" the person defamed. By the time of the Tasmanian Criminal Code Act, 1924 the draftsman thought it desirable to state in the case of all defamatory matter other than words spoken that it is publication to use certain specified means of communication of matter "or in any other manner to communicate its contents or any part thereof to any person other than the person defamed". The New South Wales section, after dealing with words spoken or audible sounds made, deals with signs, signals or gestures in terms like those of the Queensland Criminal Code, and then deals with other defamatory matter along the lines of the Tasmanian Act. No doubt these innovations whereby residuary forms of communication were covered were necessary in view of the different kinds of communication which became possible owing to technical progress since 1879, and the probability that ingenuity in this respect is even now by no means exhausted. But once these general terms had to be introduced, the function of the provision in making clear in concrete terms what amounted to publication was to some extent defeated. Since at common law any method of communication will suffice, and since the draftsmen of the various versions of this section did not appear to have intended to depart from this, it does not appear that this type of section serves any useful function. We expect to recommend that it be repealed and that it should not be replaced.

113. There is at present the difficulty in relation to s. 8 that however broadly its terms are expressed to cover different modes of communication, the effort to achieve comprehensiveness will be defeated unless the modes are comprised within the "spoken words or audible sounds or words intended to be read either by sight or touch or signs, signals, of visible representations" whereby one may defame a person within the meaning of s. 7. For, as we have seen, if there is no defamed person there is apparently no publication within the meaning of the Act. This possible limiting factor on the breadth of the definition in s. 8 would however be removed by the adoption of our foreshadowed recommendation for the repeal of s. 7, even if s. 8 were to be retained.

114. An uncertainty has existed since the passage of this section concerning the question whether a communication by a person to his spouse is publication. At common law it is not (Wennhak v. Morgan (1888) 20 Q.B.D. 635) though there are words in the Queensland Parliamentary Debates which might suggest that this was not Sir Samuel Griffith's interpretation of the common law at the time of his drafting the Queensland Defamation Bill (See 58 Queensland Parliamentary Debates (1889) 1039). The section he adopted - making various communications to a person "other than the person defamed" publication - is only consistent with the common law position if it be assumed that it is intended to incorporate the old common law notion that husband and wife are one person or that husband-wife talk is a common law privilege within the saving section (s. 3(2)). The former supposition faces difficulties arising out of the principles of interpretation properly to be applied to a code (See supra para. 69), the difficulties in the way of the latter supposition we have already discussed (Supra para. 78). In these circumstances the Queensland District Court decision in Tanner v. Miles ((1912) Q.W.N. 7) that the Criminal Code provision has abrogated the common law is at least not obviously wrong. Argument can also be made that since this decision long antedates the New South Wales adoption of the substance of the provision the New South Wales legislature may be considered to have intended to adopt the existing interpretation along with the provisions itself. If s. 8 is not repealed, we expect to recommend that action be taken to clarify the section in the present respect. Criminal proceedings in respect of defamatory communications by husband to wife or vice versa are as unthinkable in our community as the examples in Nazi Germany were horrifying to post-war Germany. The intrusion of the action for civil injuries into the domestic scene is also contrary to the general principles running through our tort law.

115. A further source of obscurity in the present s. 8 lies in the doubt it leaves whether publication must be deliberate, or at least negligent, to involve the defendant in liability. At common law there is no liability for defamation unless the publication was intentional or negligent, though once publication is shown to have been intentional or negligent it is no defence to show that the defendant could not reasonably have known that what he published was defamatory (See J.G. Fleming Law of Torts (3 ed. 1965) 520-1 and authorities cited). The definition of publication adopted by Sir Samuel Griffith in 1889 seemed to require, in relation to some modes of publication at all events, deliberate intent by the publisher. One kind of communication of matter included within the definition of publication was "causing it to be shown or delivered with a view to its being read or seen" (italics supplied). This form of words appears also in the Queensland Criminal Code, 1899, s. 369 replacing the original section and in the identical section (s. 349) of the Western Australian Criminal Code Act, 1899. The draftsmen of the Tasmanian Criminal Code Act, 1924 (s. 200) and the Tasmanian Defamation Act, 1957 (s. 7) inserted in each case a specific protective proviso. There is only publication if "the person making the publication knows or has the opportunity of knowing, the contents or nature of the document or other thing containing the defamatory matter". There is no such saving in the present New South Wales section and the words used are throughout more objective. The words "with a view to" do not appear. The words "so as to", which may indicate merely a result rather than a design, are used in the earlier part of the section. In the latter part typical operative words are "cause to be communicated to" which again do not appear to involve any notion of design. If this section is not repealed, we would expect to recommend that steps be taken to clarify this aspect.

116. We have considered whether, if s. 8 is repealed and the attempt to provide a general statutory definition of publication is abandoned, provision should nevertheless be made changing the common law rule whereby publication has to be shown to be deliberate or the result of negligence. To some there appears to be a paradox in the common law rules whereby, as Professor Fleming expresses it, “there is no liability for intentionally defamatory matter published accidentally, but there is for accidentally defamatory matter published intentionally" (J.G. Fleming Law of Torts, 520). Professor Fleming argues that "this perplexing result is the outcome of the one-sided emphasis on the publication rather than the composition of the libel" and that "pragmatically, the distinction has little merit because the victim in either case stands in equal need of vindication" (Id. at 520-1). Nevertheless, we expect to recommend that the present matter be left as at common law. The strictness of liability in various areas of the common law, and proposals for extension of liability into further areas, are generally justified on the ground that it is reasonable for the inevitable risks associated with certain enterprises to be borne by those who benefit from the enterprise. On this basis it would not appear to be unreasonable to hold those who enter upon the enterprise of publishing liable for defamatory harm that reasonable care and skill cannot avoid, while at the same time excusing those who do not enter upon the enterprise deliberately or have any reason to know they are doing so. Admittedly an element of artificiality enters the argument when it is realised that publication is defined so broadly that all abstention from it is virtually impossible. But this would suggest that the present law involves strict liability in perhaps too broad an area rather than that the matters in regard to which liability is independent of intent or negligence should be increased.