Paragraphs 117 to 184

"PROTECTION, JUSTIFICATION, OR EXCUSE" (SECTION 9)

117. This section provides that "it is unlawful to publish defamatory matter unless the publication is protected, or justified, or excused by law". The term "justified" is a familiar one in relation to the common law rules of defamation, the defendant being said to justify when he sets up the defence of truth. In New South Wales it has been used to refer to the defence that the matter is true and was published for the public benefit. The terms "protected" and "excused" were, however, novel to New South Wales when introduced in the Defamation Act, 1958 by this section and derived originally from the Defamation Law of Queensland, 1889. Sir Samuel Griffith explained in introducing the Bill for that Act that the term "privilege" was used in various senses in connection with the law of defamation; "absolute privilege", "qualified privilege" and "the privilege of the Press". The last he regarded as a misnomer since the Press had no special privilege; it was really the right to make fair comment which was in issue and this in his view was "justification". He considered that the publication of matters of public interest was likewise properly described as justification. What at common law was called absolute privilege Sir Samuel considered was more properly described as protection, while what was at common law called qualified privilege lie thought was more properly described as excuse (57 Queensland Parliamentary Debates (1889) 734-735). Of the defence ordinarily called "justification" Sir Samuel said nothing, almost certainly because he had no quarrel with the common law terminology to this very limited extent. Assuming this to be so, the language of Sir Samuel's sections dealing with defences accurately reflects the threefold classification as he outlined it and these continue to be reflected in the language of relevant sections of the New South Wales Defamation Act, 1958. Unhappily, however, the headings of this Act are in conflict with Sir Samuel's intentions in this matter. In view of the confusions which led to this occurring and which are in turn being caused by it, as explained in the succeeding paragraph, we expect to recommend the abandonment in the Defamation Act, 1969 of Sir Samuel's innovations and a return to the traditional terminology which, whether truly descriptive or not, is well understood by the profession.

118. In the New South Wales Defamation Act, 1958 the matters which we know from the Queensland Debates Sir Samuel regarded as "protection" are dealt with in s. 11 (privilege of Parliament, petitions to Parliament and Parliamentary papers), s. 12 (privileges of judges, witnesses and others in courts of justice) and s. 13 (reports of official inquiries). Each provision, following Sir Samuel's original drafting, uniformly states that "a person shall not incur any liability as for defamation" in specified circumstances. What we know Sir Samuel regarded as circumstances of justification are dealt with in s. 14 (publications of matters of public interest) and s. 15 (fair comment), while the defence of truth and public benefit which we have inferred Sir Samuel was content should continue to be called justification is dealt with in s. 16. In each case the section provides that "it is lawful" to do what it specifies. What we know Sir Samuel regarded as matter of excuse is dealt with in s. 17 which commences "it is lawful excuse for the publication of defamatory matter if". Sections 11 to 13 appear, however, under the heading "Absolute Protection", ss. 14 to 16 under the heading "Protection" and s. 17 under the heading "Qualified Protection". These headings follow the marginal notes to the Queensland Criminal Code of 1899, some of which must have been inserted without Sir Samuel's knowledge since they are in conflict with his intentions, setting all the defences up as kinds of protection instead of treating each as in one of three categories.

119. One consequence of the complications in determining the- precise connotations of these various categories has been complaint about the obscurity of s. 18, dealing with the burden of proof of good faith in connection with publications which if in good faith are "made under circumstances which would afford lawful excuse" (See supra paras. 48 and 49). This we consider in its order (Infra para. 213). A further question is, however, how far the categories are intended to be exhausted in their application by reference to the statutory defences, or how far common law defences may be covered by the expression "protected, or justified or excused by law". "Protections or privileges" not dealt. with in the Act are, as we have seen, preserved in the circumstances of s. 3(2) (Supra para. 77) but if a common law defence is not covered by that section, questions could arise as to whether the language of s. 9 is apt to refer to it and if so in which of its aspects. We may instance the defence of "leave and licence" as raising possible problems in this connection as in the interpretation of s. 3(2).

120. As the solution to these problems we expect to recommend the repeal of the section. In the Act of 1958 it serves an important function as a linch-pin tying together the various elements of the wrong and the crime, and the various defences, which have been defined in other sections. If, however, the wrong is regarded as by and large satisfactorily constituted as at common law, and the statute seeks only to make limited modifications, and if the crime is considered ripe for abolition (Infra paras. 244-247) the functions of s. 9 become unnecessary.

DEFAMATION ACTIONABLE (SECTION 10)

121. Section 10 provides that "the unlawful publication of defamatory matter is an actionable wrong". In part the object of the section is to serve the codifying purposes of the present Act by defining comprehensively in conjunction with other sections the conditions of civil liability for defamation. Since we expect to recommend the abandonment of the code principle we expect to recommend also repeal of the section, leaving the conditions of civil liability in general to the common law. Two of the functions of the present section nevertheless call for preservation - the assimilation of slander to libel and the elimination of the technical concepts of falsity and malice from the statement of the plaintiff's case in his declaration. These we discuss in turn in the succeeding paragraphs.

122. At common law libel was actionable without proof of special damage, but slander - roughly spoken as opposed to written defamation - was actionable only in a few cases unless actual damage was shown. This has remained the position in England with little statutory amendment, and that designed only to add a category to the cases of slander actionable per se (Slander of Women Act, 1891) or to remove an arbitrariness in the application of the rules relating to one of the established categories (Defamation Act, 1952, s. 2). The categories grew up as the result of a contention for jurisdiction between ecclesiastical and king's courts without rational basis, and the establishment of a general tort of slander without the necessity of proof of damage in any circumstances was recommended by the committee whose deliberations led to the (English) Libel Act, 1843 (6 & 7 Vic. c. 96). The recommendation was not accepted in England, but led to the inclusion in the (N.S.W.) Act 11 Vict. No. 24 of the provision that "the right of action for oral slander shall extend to all defamatory words for which an action might now be maintained if the same were into writing and that all rules now in force relating to written slander shall so far as they are applicable and are not altered by this Act be deemed applicable to all actions for such defamatory words" (s. 1). The position thus established in New South Wales has attracted no criticism before us nor any criticism of which we are aware. In refusing to recommend a change in the law in England in the present respect Lord Porter's committee described the present English law as "arbitrary and illogical" (Cmd. 7536, p. 13) and defended it only on the basis that "it exists and forms a not unsatisfactory compromise which gives adequate protection in the common run of cases, whilst avoiding tile encouragement of trivial complaints" (Ibid). In New South Wales the distinction between those cases of slander actionable per se and those not so actionable does not exist, and the discouragement of trivial cases has been since 1847 attempted by the direct: means of making it a special defence to most or all actions for slander that the words were spoken on an occasion when the plaintiff's character was unlikely to be injured thereby (11 Vict. No. 13 s. 2, cf. Defamation Act, 1958, s. 20). The rarity of actions for slander indicates that this last-mentioned provision is adequate for its purpose and we propose to recommend its retention and the extension of its scope (Infra paras. 218-222) as well as the re-enactment of the sense of s. 1 of the Act of 1847. We consider this latter should be done by specific provision rather than by a provision of the type of the present s. 10 which enacts much of the common law as well; but the historical allusion in the provision of the Defamation Act, 1912 which might otherwise be re-enacted seems undesirable (“The right of action for oral slander shall extend to all defamatory words for which an action might have been maintained before the twenty-fourth day of August, one thousand eight hundred and forty seven, being the date of the passing of the Act eleventh Victoria number thirteen, if such words had been reduced into writing" (s. 4(1)). We incline to recommend therefore that the proposed Defamation Act, 1969 should contain a provision: "It shall be unnecessary in any action for defamation, whatever the mode of publication, to allege or prove special damage. "

123. In introducing the Bill which contained the model of s. 10 of the Defamation Act, 1958 to the Queensland Parliament, Sir Samuel Griffith criticised the existing law on the basis that the judge tells the jury that the publication must be malicious and "having said their, he next tells them that that does not mean anything, because if the matter is defamatory the law presumes that it is malicious" (57 Queensland Parliamentary Debates 734). Sir Samuel then proceeded to deal wine the need for proof of express malice, in the sense of improper motive, on occasions of qualified privilege and concluded that the jury was confused by the terms in which the matter had to be put to it. Sir Samuel, therefore, endeavoured to do without the use of the terms "malice" or "implied malice" or "express malice" One of the means of doing without the conception was to state the elements in a civil cause of action for defamation in what is in New South Wales s. 10 by reference to the notion of unlawful. publication of defamatory matter after defining unlawfulness in the section corresponding to the New South Wales s. 9 as the absence of protection, justification or excuse by law. In the light of these provisions, an allegation of malice in the declaration is no longer necessary in New South Wales, though it has also been suggested that this is not of itself a change in the law since malice would formerly have been presumed from an allegation of falsity (See A. F. Rath, Q.C., Address for the Council for Advanced Legal Studies of the New South Wales Bar Association "Pleading and the Onus of Proof in the Action of Defamation" 4, referring to Bullen and Leake Precedents of Pleadings (3 ed. 1868) 304), which now however is itself no longer required in New South Wales. Although the Defamation Act, 1958 made it clear that neither an allegation of malice nor an allegation of falsity was required in the declaration, it did not immediately achieve the desired effect in New South Wales of removing the notion of implied malice from any possible contact with the jury. For there was nothing to prevent the plaintiff from continuing to insert the allegation in the declaration, and the effect of his so doing had to be considered by the judges in Motel Holdings Ltd.v. Bulletin Newspaper Co. Pty. Ltd. ((1963) S.R. 208, 80 W.N. 213) and Clines v. Australian Consolidated Press ((1965) 83 W.N. (Pt. 2) 299). In the latter case one judge expressed the opinion in effect that what result the Act might have in clarifying matters for the layman in the present respect was bought at the cost of confusion for the profession. Mr. Justice Sugerman observed that "difficulties of this kind do not appear to have affected pleaders in actions for libel or slander before the passing of the Defamation Act, 1958". His Honour pointed out that “the manner and form of pleading in such actions had become well established by a combination of statute law, rules of court, decisions of the courts, and settled usage" and "the result was well understood and occasioned no difficulty in practice" (Id. at 300). Some of the new difficulties have, however, been removed by the two decisions mentioned. An allegation of falsity and malice in a declaration is now held to be surplusage, it cannot validly be traversed and it is not admitted by failure to traverse. As the words are a mere flourish, it is unnecessary to strike them out (Clines v. Australian Consolidated Press Ltd., supra). It is also unnecessary for the defendant where he pleads an occasion of qualified protection (formerly called qualified privilege) to plead at the same time his good faith (deny what would formerly have been termed express malice) (Motel Holdings Ltd. v. The Bulletin Newspaper Co. Pty. Ltd., supra). Unsettled questions and sources of difficulty nevertheless remain.

124. Difficulty exists in the way of having an allegation of falsity and malice struck out, surplusage though it may be. Mr. Justice Walsh (in Clines v. Australian Consolidated Press. (1965) 83 W.N. (Pt. 2) 299 at 308) calls attention to the terms of the Common Law Procedure Act, s. 67 which provides that "the forms of pleadings contained in the Third Schedule to this Act shall be sufficient". Form 30 in that Schedule begins "that the defendant falsely and maliciously spoke and published of the plaintiff the words following". It was having regard to the existence of this section that Mr. Justice Walsh proposed in Clines' Case that the words "falsely and maliciously" should not be struck out of the declaration as requested, and they were not in fact struck out. The matter, assumes some significance in the light of us that unnecessary allegations of an abusive character in the declaration inflame the jury (Supra para. 43). In our view the importance of avoiding this result to the running of the jury system is such (See supra paras. 102 and 103) that, whatever is done in relation to s. 67 of the Common Law Procedure Act (it is the subject of an independent reference to the Commission) the inclusion of expressions such as "falsely and maliciously" in the declaration should be made unnecessary and impermissible. We therefore suggest that the proposed Defamation Act, 1969 should contain the following provision in a Second Schedule (it is proposed that the Second Schedule provisions should be alterable by Rules of Court made subsequently to the commencement of the Act in order to maintain flexibility in the light of judicial experience):

(1) Subject to these rules a declaration in an action for defamation shall be as valid and effective in all respects as formerly notwithstanding that the formerly customary words "falsely and maliciously" are not included and no words shall be necessary to be included in substitution for those words and the inclusion in the declaration of those words or words imputing improper motives or bad faith to the defendant shall in all circumstances be deemed inflammatory and embarrassing.

(2) Words shall not be unnecessarily included in a pleading in an action for defamation which are inflammatory or embarrassing and words so included shall be struck out at the instance of the opposite party.

We conceive that the inclusion of the second sub-rule would strengthen the position of an applicant as compared with his position under s. 61 of the Common Law Procedure Act, which was acted upon in a similar situation to the present by Mr. Justice McClemens in Kear v. Consolidated Press Ltd. ((1956) 73 W.N. 387). 12 5. Among the questions which will not further arise if this rule is made is the question whether an allegation of malice in the declaration will have effect as an anticipatory denial of the good faith of the defendant in case the defendant should plead circumstances of qualified privilege. Even if the declaration used such words as "without good faith" or "actuated by ill will to the plaintiff", Mr. Justice Sugerman has suggested that such proleptic modes of pleading would be ineffective (Clines v. Australian Consolidated Press Ltd. (1965) 83 W.N. (Pt. 2) at 302). "Although these are allegations of potentially essential facts," his Honour states, "they would appear, because of the prematurity of their allegation, to be inessential at the time of their pleading" and "thus a plea traversing either of them would be demurrable" (Ibid.). Mr. Justice Walsh agrees with Mr. Justice Sugerman that at any rate the words "falsely and maliciously" could not be regarded as an anticipatory assertion of absence of good will (Id. at 306). On the other hand, Mr. Justice Ferguson in the same case preferred to leave the point open, and the President of the Court of Appeal has said that "a plaintiff may if he wishes anticipate a defence based on privilege and declare by alleging ‘unlawfully and in the absence of good faith’ in which event the defendant would plead privilege and also deny the absence of good faith” (Motel Holdings Ltd. v. The Bulletin Newspaper Co.) (1962) 80 W.N. 213 at 222). We conceive that the enactment of the provisions recommended in the last preceding paragraph would generally prevent litigation on this issue by preventing the plaintiff from adopting such a course.

126. In the present state of the substantive law and pleading rules there seems little prospect of the need arising for any anticipatory assertion of bad faith in the plaintiff's declaration, and the rule we have proposed would prevent resort to such a course. A defence of qualified protection requires to be specially pleaded by reason of Rule 30A of Order XXX providing in general terms that "in an action for the publication of defamatory matter defences of protection, justification or excuse by law shall be pleaded specially". The plaintiff may then plead bad faith in his replication. In spite of the general terms of Rule 30A, however, doubts were expressed in Orr v. Isles ((1966) 83 W.N. (Pt. 1) 303) whether the rule was intended to apply to common law defences (See supra para. 79). The reference in that case was to common law defences arising in actions commenced after the promulgation of the rule, but arising out of circumstances occurring prior to the commencement of the Act of 1958. A similar question of the application of the rule could possibly be raised in relation to circumstances arising since the Act coming within common law privileges preserved by s. 3 (2). If rule 30A does not then apply - and there are reasons of justice why it should not, for the defendant cannot in those circumstances construct his plea with safety by following the wording of a paragraph of s. 17 - then the defendant may raise the matter of privilege under a plea of not guilty and the plaintiff will in that case have no opportunity for a replication alleging bad faith. Since in any case we do not propose to recommend a statutory statement of the common law defences in the proposed Defamation Act, 1969 (Supra paras. 66-70) as the present Act does, then if the defendant be not required specially to plead matter of common law privilege after the commencement of that Act, we would need to recommend that the ancient function of the declaration as in anticipatory denial of good faith be restored in those circumstances. Some such rule as the following would need to be included within the Second Schedule to the proposed Act:

Notwithstanding the absence of the words "falsely and maliciously" from the declaration in an action for defamation, the declaration shall operate, without prejudice to the generality of Rule 1 above (Supra para. 124) in answer to matter of qualified privilege raised by the defendant other than by way of special plea as it did prior to the commencement of the Defamation Act, 1958 when those words were present.

Our presently preferred alternative, however, is that provision should be made for a simple special plea that the words were spoken on an occasion of qualified privilege, leaving malice to be alleged in all cases by way of replication (Infra para. 208).

ABSOLUTE PRIVILEGE OF PARLIAMENT (SECTION 11)

127. Section 11(1) provides that "a member of either House of Parliament does not incur any liability as for defamation by the publication of any defamatory matter in the course of a proceeding in Parliament". The model of the subsection is Sir Samuel Griffith's provision in the Queensland Defamation Law of 1889: "A member of either House of Parliament does not incur any liability as for defamation by the publication of any defamatory matter in the course of a speech made by him in Parliament." As the provision was originally introduced in the Bill for the Defamation Act, 1958 it followed the Queensland counterpart. exactly, the alteration being made on Government initiative in the Legislative Council (New South Wales Parliamentary Debates (Session 1958) 2, 301-2). It was explained that it had been pointed out, by officers of the House and by members during the debate, that if the sub-clause as originally drawn became law it would fail to protect members when asking questions, giving notice of motion or making interjections. The provision was new to New South Wales law, and its passage through Parliament appears to illustrate the danger, in attempting to reduce a common law privilege to statutory form, of overlooking some aspect and stating the privilege too narrowly. Providing that the proposed Defamation Act, 1969 contains a savings section of the kind we have suggested (Supra para. 78) a too-narrowly-defined statutory privilege may ultimately do little harm, for the common law privilege will in any case be preserved. But having regard to the confusion which could be caused, for example, if a plaintiff were to argue that the protection specifically does not extend to injurious falsehoods and an action should therefore lie for such tort by some implication from the statute, we incline to recommend the repeal of the section. The common law privilege of members of the New South Wales Parliament was held to be ample enough to cover members' questions as well as speeches in Gipps v. McElhone ((1881) 2 L.R.N.S.W. 18) and has the potentiality of development to cover all eventualities in accordance with the spirit of the privilege as determined during the seventeenth century constitutional struggles when it was confirmed by the Bill of Rights (1689) art. 9. Professor Fleming states that "the common law privilege seems wide enough to cover speeches in the Federal Parliament broadcast over the radio" but "it has been specifically enacted that 'no action or proceeding ... shall lie against any person for broadcasting or rebroadcasting any portion of the proceedings of either House of the Parliament"' (Parliamentary Proceedings Broadcasting Act 1946, s. 15). The existence of this section would not, however, appear to cast any doubt on the amplitude of the common law privilege to cover the members whose speech is broadcast, since the section does not seem to be aimed to protect those making the speeches but at those engaged in the process of relaying them by the broadcasting medium. It seems clear that if State proceedings, to which alone the subsection which is the subject of the present paragraph applies, were broadcast the members would be protected at common law. The protection of those engaged in the process of broadcasting may be left to be defined by appropriate legislation when and if the need for it arises.

128. By s. 11(2) of the Defamation Act, 1958 it is provided that “a person who presents, or secures the presentation of, a petition to either House of Parliament does not incur any liability as for defamation by the publication to that House of Parliament of any defamatory matter contained in the petition". This provision exactly follows Sir Samuel Griffith's drafting for the 1889 Defamation Law of Queensland, except, that the words "or secures the presentation of" have been added to broaden the scope of the protection. The addition appears to be an innovation and the whole provision is new to the statute law of New South Wales. Sir Samuel Griffith believed that the subsection was merely declaratory of existing law (57 Queensland Parliamentary Debates 735) states the common law rule to be that "an absolute privilege attaches to any statements contained in a petition addressed to Parliament, or to a Committee of either House" (Gatley on Libel and Slander (6 ed. 1967) 197). Conceivably, therefore, the common law privilege is wider than the statutory one existing under the present subsection while there is no reason to suppose that the statutory one is wider than the common law in any respect. If, therefore, the statutory privilege is preserved, while the common law one is restored as we have suggested (Supra para. 78), the only result will presumably be a multiplication of defences and arid argument about the limits of the defence depending on the statutory privilege. We therefore incline to recommend that this subsection be repealed.

129. Section 11(3) provide s that "a person does not incur any liability as for defamation by publishing, by order or under thee authority of either House of Parliament, a paper containing defamatory matter". An additional paragraph makes it clear that the Government Printer in publishing the reports of either House is protected by the subsection. The quoted passage derives from the Defamation Law of Queensland, 1889, but statutory protection for persons publishing papers under the authority of Parliament has existed in New South Wales since the days before responsible government. By 13 Vict. No. 16 it was enacted that proceedings criminal or civil against persons for publication of papers printed by order of the Legislative Council of the Colony were to be stayed upon delivery of a certificate and affidavit to that effect (s. 7). Provision was also made for staying proceedings in respect of publication of copies (s. 8). These provisions, amended to take account of the changed Parliamentary situation, were consolidated by ss. 20 and 21 of the Defamation Act, 1901, and by ss. 26 and 27 of the Defamation Act, 1912. In 1940 a paragraph was added to s. 26 (Act No. 4, 1940, s. 2) making it clear that the Government Printer was within the protection. These sections have been preserved as s. 40 of the Defamation Act, 1958, additionally to the protection given by s. 11(3). Since we incline to recommend the re-enactment of s. 40, the preservation of the existence of s. 11(3) also would only be of significance if the defendant did not wish to use the procedure provided by s. 40. While this will not often arise, it is not inconceivable and we therefore incline to recommend the re-enactment of s. 11(3). In this case the privilege does not exist at common law (Stockdale v. Hansard (1839) 9 A.&E.). As framed, the section applies only to State Parliament but the position in relation to Commonwealth Parliamentary papers is dealt with by the Parliamentary Papers Act, 1908-1946.

PRIVILEGES OF JUDGES, ETC. (SECTIONS 12 AND 13)

130. Section 12 provides that "a person does not incur any liability as for defamation by publishing in the course of any proceeding held before or under the authority of any court of justice, or in the course of any inquiry made under the authority of any statute, or under the authority of Her Majesty, or of the Governor, or of either House of Parliament, any defamatory matter". This is a copy (with the exclusion of the words "in Council" following "Governor") of s. 372 of the Queensland Criminal Code, 1899. This provision appears to be more ample in its scope than the common law privilege which, apart from judicial proceedings proper, will absolutely protect only in the case of proceedings which can be described as "quasi-judicial" (Gatley on Libel and Slander (6 ed. 1967) 186). Moreover, it might be expected that the limits of the statutory privilege would be more easily drawn, leading to a reduction in litigation, though borderline problems have engaged the attention of the courts under the Queensland provision in such cases as O'Neill v. Barry ((1911) Q.W.N. 32) and Wishart v. Doyle ((1926) Q.S.R. 269). We incline to recommend that the provision be re-enacted but that the suggestions raised by Wishart v. Doyle that the privilege is confined to judicial inquiries (for which there appears no colour in the words of the statute) be removed. For this purpose we suggest that the words "whether judicial or otherwise" be added after the word "inquiry".

131. Section 13 provides that "a person appointed under the authority of a statute, or by or under the authority of Her Majesty, or of the Governor, to hold any inquiry does not incur any liability as for defamation by publishing any defamatory matter in any official report made by him as the result of the inquiry”. This provision is virtually identical with the corresponding provision of the Defamation Law of Queensland. Introducing it, Sir Samuel Griffith said that if it was not the common law, he was sure it soon would be (57 Queensland Parliamentary Debates 735-6), yet it seems desirable to preserve this provision for the same, reasons as s. 12. We incline to recommend that it be re-enacted in the proposed Defamation Act, 1969 with the addition of the words "whether judicial or otherwise" after the word "inquiry" for the reason explained in the preceding paragraph.

132. We have considered the representations made to us that the protection offered by s. 13 is restricted unduly by being limited to reports resulting from the holding of inquiries (Supra para. 21). It appears, however, that the circumstances in which any public official might be authorised to communicate matter to the public would be too multifarious to surround all with absolute privilege. To select for such privilege those which might be dignified by the name of a "report" to the public would in our opinion provide too tenuous a line of distinction to separate those communications appropriate for such protection from those disentitled to it. The conferring of absolute privilege in relation to reports not resulting from inquiries is so serious a step that the existing practice of making specific provision for it where desired in the statute providing for the type of report in question, though unwieldy, seems the most satisfactory.

133. Because of the greater amplitude of the protection given by the provisions of ss. 12 and 13 than the common law, the extent of their territorial operation becomes of significance. It seems likely that a court would interpret the publications referred to in the sections as limited to publications in New South Wales. It seems possible that a court would interpret the statutes referred to as statutes of New South Wales (Interpretation Act, 1897, s. 17). The reference to Her Majesty might be held to be a reference to the Crown in the right of New South Wales. The reference to the Governor would almost necessarily be a reference to "the Governor with the advice of the Executive Council" or other "the person for the time being lawfully administering the Government of New South Wales" (Interpretation Act, 1897, s. 15(11)). It seems desirable to make it clear that any publication made in New South Wales of a kind caught by these sections is to be protected if the authority under which the inquiry is held extends to the publication here, whether Imperial, Commonwealth, or New South Wales statute or the Crown in the right of Commonwealth or New South Wales. We therefore incline to recommend the addition of an interpretation section as follows:

The expressions "statute" and "Her Majesty" in the two preceding sections shall include respectively Imperial and Commonwealth Acts in force in New South Wales and the Governor-General-in-Council.

In the light of the provisions of the Commonwealth Constitution s. 118 (the "full faith and credit clause") and the similar provision of the State and Territorial Laws and Records Recognition Act, s. 18, it is conceived that any extension of the protection of the section to publications outside the State would be of questionable constitutional validity and is to be avoided for that reason.

PRIVILEGED REPORTS (SECTION 14)

134. Section 14(1) makes it lawful to publish in good faith for the information of the public (a) a fair report of the proceedings of Australian Parliaments, their Houses and (b) of Committees thereof, (c) copies of and extracts from Parliamentary papers, (d) a fair report of public proceedings of courts of justice, (e) copies etc, of default judgments, (f) a fair report of proceedings of official inquiries, (g) public notifications from Governmental sources, (h) a fair report of certain proceedings of local and statutory authorities, (i) a fair and accurate report of certain proceedings of the Australian Jockey Club, (j) a fair report of proceedings of public meetings. "Public Meeting" and "good faith" are defined and in certain cases failure to apologize is made evidence of bad faith. The subsection in its present form largely follows the drafting of Sir Samuel Griffith in the Queensland legislation, but this in the present instance constitutes less of an innovation than in the case of other sections of the Act of 1958. In 1909 the New South Wales legislature passed the Defamation (Amendment) Act (No. 22 of 1909) which was designed to bring the law in New South Wales abreast of some reforms effected in England by the Newspaper Libel and Registration Act, 1881 (44 & 45 Vict. c. 60) and the Law of Libel Amendment Act, 1888 (51 & 52 Vict. , c. 64). In adapting the English legislation to its purposes, the New South Wales draftsman of 1909 made use of Sir Samuel's drafting of the 1889 Queensland Act, which in the present matter had drawn on the English Act of 1888 (57 Queensland Parliamentary Debates 736). In a major matter the 1909 New South Wales legislation failed to follow Sir Samuel's departure from the English model: whereas Sir Samuel threw open the statutory privileges to report these matters to all who might wish to publish them, the New South Wales Act, like the English, confined its protection to publication in a newspaper (s. 5). Further, the New South Wales Act of 1909 failed to follow either the English or the Queensland Act in providing for reports of public meetings. Consequently, when the Act of 1958 was passed, bringing the law relating to reports generally into line with the Queensland legislation, the protection provided was broadened in these two respects. In some matters the protection provided by the previous New South Wales legislation was broader than the Queensland model and in these matters the draftsman of the 1958 Act maintained the differences: (1) the privilege to report the proceedings of the Committee of the Australian jockey Club introduced by Act No, 39, 1948, s. 4,(1)(a) was continued; (2) the inclusion of the privilege to report inquiries held under the authority of the Governor-General-in-Council as well inquiries in the categories corresponding to those in the Queensland legislation was continued; (3) the privilege, not included in the Queensland legislation, to publish copies or abstracts of judgments or entries relative thereto was continued, though modified.

135. Some question has been raised whether the English legislation on which s. 14(1) is based in fact extended the common law protection (See Spencer Bower Actionable Defamation (2 ed. 1923) 405-14). In view, however, of doubts about the extent of the common law, long experience here and elsewhere of the working of the statutory provisions in one form or another, and the broad scope of the present New South Wales protection as indicated above, we incline to recommend that it be re-enacted in form and substance with only detailed modifications as recommended in the following paragraphs(and as drafted infra para. 148).

136. We have referred (Supra para. 21) to requests that the privilege to report parliamentary and judicial proceedings of different kinds should be extended geographically to cover such institutions in all countries as well as international bodies. The territorial scope of the present provisions in any case needs clarification. While it is made clear that the proceedings and papers of the Parliaments of all States of the Commonwealth and the Commonwealth itself are in the field of privileged reports, yet the references in paragraphs (d) and (e) to "any court of justice", the references in paragraphs (f) and (h) to "any statute", the references to "a Government office or department, officer of State or officer of police" in paragraph (h), the reference to "any public meeting" in paragraph (i) are all left without geographical location. Assistance may, however, be derived from, for example, the Interpretation Act, 1897, s. 17:

Wherever in an Act any officer or office is referred to, the same shall be taken to refer to the officer or office of that description designated in and for New South Wales, and all references to localities jurisdictions and other matters shall, unless the contrary intention appears, be taken to relate to such localities, jurisdictions, land other matters and things in and of New South Wales.

To the extent that the statutory privileges do not stretch, the common law privileges clearly do not supply the deficiency even in relation to those topics where there is a common law privilege for reporting local material. The decision in Webb v. Times Publishing Co. Ltd. ((1960) 2 Q.B. 535) refusing to recognize a general privilege to report foreign judicial proceedings is illustrative. "As regards English proceedings," said Mr. Justice Pearson "it is desirable to have a simple rule, and it is not unreasonable to say all persons living in England have a real interest in, and are concerned with, anything that happens in any part of the country in the administration of their law in any of their courts." His Lordship considered, however, that "it would be extravagant to say that the citizens of England have a real interest in, and are concerned with, the adjudication of some trivial and purely personal dispute on the other side of the world" ((1960) 2 Q.B, at 562). In the particular case before him his Lordship held the matter (publication of a Swiss trial) privileged only because the particular subject matter (in its reference to English proceedings) placed the newspaper under a duty to publish it in the interests of the English public. Lord Porter's committee considered that no general privilege could be granted in respect of foreign judicial proceedings because "we have found it impossible to put forward any criterion of general application which could be adopted to limit and define such foreign courts as maintain a standard of justice and a method of procedure which would justify our recommending that reports of their proceedings should be entitled to qualified privilege without any droit de réponse" (The committee felt if a droit de réponse were permitted it could lead to retrial of the foreign proceedings in England by newspapers). Nevertheless the committee recommended an extensive list of qualified privileges for newspaper statements which were adopted by s. 7 (and extended to broadcasts by s. 9) of the Defamation Act, 1952 and Part I of the Schedule to the Act. The privileged reports comprise:

1. A fair and accurate report of any proceedings in public of the legislature of any part of Her Majesty's dominions outside Great Britain.

2. A fair and accurate report of any proceedings in public of any international organization of which the United Kingdom or Her Majesty's Government in the United Kingdom is a member or of any international conference to which that government sends a representative.

3. A fair and accurate report of any proceedings in public of an international court.

4. A fair and accurate report of any proceedings before a court exercising jurisdiction throughout any part of Her Majesty's dominions outside the United Kingdom, or of any proceedings before a court martial held outside the United Kingdom under the Naval Discipline Act 1957, the Army Act 1955, or the Air Force Act 1955.

5. A fair and accurate report of any proceedings in public of a body or person appointed to hold a public inquiry by the government or legislature of any part of Her Majesty's dominions outside the United Kingdom.

Lord Shawcross’ committee considered that the provisions of the Act of 1952 did not go far enough in protecting the reports of court and legislative proceedings outside the United Kingdom (Report P. 40) and the effect of its recommendations is seen in the Freedom of Publication Protection Bill, 1966 introduced into the United Kingdom Parliament which contained the following clause:

5. Part I of the Schedule to the Defamation Act 1952 (which lists the categories of reports published in newspapers or broadcasts which are protected by qualified privilege under section 7(1) of the Act) shall be amended by adding the following paragraphs immediately after paragraph 7: -

"7A. A fair and accurate report of any proceedings before a court exercising jurisdiction in any territory outside Her Majesty's Dominions.

7B. A fair and accurate report of any proceedings in public of a central or local legislature in any territory outside Her Majesty's dominions."

137. We incline to recommend that the provisions of the English Act and Bill should be implemented by legislation in New South Wales with necessary adaptations for our different geographical situation, being particularly influenced in this connection by the fact that both Australia's constitution and political situation make United States constitutional, political, and legal materials of equal importance to British Commonwealth materials so that the restrictions in the Defamation Act, 1952 seem inappropriate. In New South Wales at the present time libraries contain growing amounts particularly of foreign legal materials and it is intolerable to think that persons involved in American or European litigation might take action against the libraries concerned for publishing the material here on the ground that the subject matter of the particular case was not such as to make publication of the facts here of public importance. It is essential for libraries to subscribe to comprehensive services of such materials and any necessity for internal censorship of their materials is oppressive. The fact that libraries and reporting systems are involved is one factor inducing us to suggest that the new privilege for reports proposed should not be limited to newspapers and broadcasting stations, any more than are the existing privileges under s. 14 in New South Wales. In this respect we believe that the broadening of privilege in this area which Sir Samuel Griffith instituted and of which New South Wales became beneficiary in 1958 should be carried forward into the new fields. Apart from newspapers, reporting systems, and professional publications, many books and journals are devoted to commenting mainly on reported materials. We believe it will greatly simplify the problem of placing the defence of fair comment on a matter of public interest on a sound basis (See infra paras. 154-171) if the repetition of reported matter that takes place simultaneously with the comment is given its own privileged status and does not have to rely for its protection on the stretching of the umbrella of the fair comment defence. This matter is rendered of importance by the patent shift in the centre of gravity of the educational system of the State through all its stages in the fields of social sciences and the humanities from emphasis on history to emphasis on current affairs. For this kind of reason we are inclined not to recommend the inclusion in New South Wales legislation of the latter part - though we do the earlier part - of the restrictive subsection which in the English Act of 1952 limits the operation of the newly established privileges: “Nothing in this section shall be construed as protecting the publication of any matter the publication of which is prohibited by law, or of any matter which is not of public concern and the publication of which is not for the public benefit” (Defamation Act, 1952., s. 7(5)). Apart from the fact that the protection for large bodies of information like annual volumes of reports would be rendered tenuous if such a clause were included, it could convey the impression that the protection was restricted to information supplied for its bearing on possible political action which might at some stage be demanded. We have referred (Supra para. 4) to the limited protection which the law has in the past given to freedom of speech on cultural and educational grounds as distinct from political grounds. We think that protection to reporting of legal and political matters should be giver because of the educational and cultural importance of openness about the workings of political society, the manner in which freedom of such reporting contributes to the ideal of an open society, as well as because of the importance which a particular item of news might have for the taking of future political action.

138. These considerations make it desirable to amend the formulation of the general purposes for which the reports which are the subject of s. 14 may be published. Instead of "It is lawful to publish in good faith for the information of the public" we incline to recommend "It is privileged to publish in good faith whether for public information or in connection with the objective of public enlightenment". In this way it will be made clear that it is not merely protection as "news" that is involved but protection as material for discussion even though as news it may be stale. In making this suggestion for alteration we believe we are carrying through Sir Samuel Griffith's objective of removing the “newspaper privilege” character which this type of provision had in the original English and in New South Wales before 1958. It will be necessary consequentially to alter the paragraph defining good faith so that instead of the manner of publication being that which "is ordinarily and fairly used in the of publication of news" it becomes "such as is ordinarily and fairly used in the case of matter published for public information or in connection with the objective of public enlightenment". We consider that because any publication will have to be examined for conformity with these objectives before it gains protection, and because its matter must not be such that its publication is prohibited by law, the persons who may be the subject of defamatory statements will receive as much protection as is feasible consistent with the political and educational objectives which the law should further in the present context.

139. Those reports which are protected in the 1958 Act on the basis of Sir Samuel Griffith's Queensland legislation are "fair" reports; those protected under the provision retained in the 1958 Act from the New South 'Wales Act of 1912 are described as "fair and accurate" reports; the reports described in the English Act of 1952 are protected thereunder if "fair and accurate". We incline to recommend that the protection should be given throughout if the report is "fair". It seems clear that the report will become unfair if materially inaccurate in such a way as may prejudice the plaintiff. If the inaccuracy is immaterial or not prejudicial to the plaintiff it would seem unjust to permit the plaintiff to take advantage of it in order to deprive the defendant of his privilege. We therefore are inclined to recommend that the words "and accurate" be eliminated throughout in the Defamation Act, 1969.

140. In the case of the reports of proceedings of (presumably local) courts of justice protected under the Act of 1958 certain restrictions are imposed, for example to finality. If the English provisions were simply superadded a broader protection would be given to reports of foreign proceedings than to those of New South Wales. We incline to recommend therefore that the protection be given under the same conditions as apply at present to reports of New South Wales court proceedings, but that these conditions be redrafted to eliminate what appears to be a likely source of confusion. The present protection applies "whether the proceedings are preliminary or interlocutory or final, or of the result of any such proceedings, unless, in the case of proceedings that are not final, the publication has been prohibited by the court". This formulation introduced in 1909 in circumstances described above (Para. 134). The previous restriction on publication introduced by the New South Wales Act of 1847 was (by s. 5) that preliminary proceedings should not be published "nor any judicial proceedings which may not be concluded and which the presiding judge may pronounce it improper to publish at their then stage". It seems that if a restriction of the kind quoted is necessary it should apply at all stages until the final stage is complete, not merely to preliminary stages as it appears to do under the present Act. We therefore incline to recommend that the words "or not completed" should be added to the present form of words after the word "final" where it secondly appears.

141. We do not consider it feasible to recommend as suggested by newspaper interests that reports of the statements of Parliamentarians out of Parliament or the statements of public authorities generally should be made the subject of a qualified privilege. If the importance of the statement and the source warrants it it may be the subject of a privilege even though no general privilege to report everything a Parliamentarian or authority says exists. To provide for further protection beyond what now exists would be to depart from the long established general principle of law and common sense that both the originator of wrongful defamation and the person who gives it added currency are responsible for it.

142. Complaints are made of the limitations on the privilege applying to the reporting of judicial proceedings (See supra para. 21). It is a fact that in granting only a qualified privilege for certain reports of proceedings if they are contemporaneous, the present law in New South Wales is harsher than the common law, which grants a qualified privilege whether the report is contemporaneous or not (Gatley on Libel and Slander (6 ed. 1967) 280). It is harsher still than the present English law, which additionally grants what is believed to be an absolute privilege for contemporaneous reports in a newspaper (Law of Libel Amendment Act, 1888, s. 3, the conferring of an absolute privilege by which was assumed or determined by the Court of Appeal in Farmer v. Hyde (1937) 1 Q.B. 728, 740, 744 and conceded by the plaintiff in McCarey v. Associated Newspapers (1964) 1 W.L.R. 855 and has been the opinion of textbook writers (Gatley op. cit. 299 n. 27)). It would be a departure from the policy consistently followed in this State to set up a privilege of the English kind for newspapers especially and the result in practice if our recommendations are adopted will not differ greatly from that in England. If steps are taken to ensure that the burden of proof of ill-will is on the plaintiff (Infra. para. 151) lack of contemporaneity in the report may be a relevant factor in the judge's determination whether in the circumstances there is evidence of bad faith for the jury (See T.E.F. Hughes, Q.C., Address for 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" p. 5). What is important is that bad faith should be capable of being inferred in the present context only in cases where the circumstances of the publication provide evidence and we therefore incline to recommend that it should not be capable of being inferred from the previous dealings between the parties alone. Otherwise newspapers will not be able to report matters within s. 14 in relation to persons with whom the newspaper has brushed in the past. We also incline to recommend that the qualified privilege to publish judicial proceedings should not be restricted to contemporaneous publication. If the requirement of good faith is maintained this should serve to prevent recalling of discreditable events at a later stage merely for entertainment purposes when the person involved is endeavouring to re-establish himself. The requirement of contemporaniety superimposed on the requirement of good faith did not exist before 1958 and it seems that the requirement of good faith alone exercised sufficient restraint before that time to prevent any gross abuse of privilege. When the requirement of contemporaneity was imposed in 1958 an exception had to be made in respect of court matter for the legal profession, which can be regarded as discriminatory in view of the interest of other professions in legal materials. Uncertainty about the scope of the word "contemporaneous" has added to dissatisfaction with the provision. We incline to recommend that it be repealed.

143. In a different category from complaints concerning the requirement that the publisher of material should be acting in good faith is the newspaper complaint (Supra para. 21) that under s. 14(1)(j) the reporter of a public meeting is made responsible for the good faith of those holding the meeting. This results from the fact that "public meeting" is defined as "a meeting lawfully held for a lawful purpose, and for the furtherance or discussion in good faith of a matter of public concern or for the advocacy of the candidature of any person for a public office, whether the admission to the meeting was open or restricted". The definition is based upon the Queensland legislation and has been part of New South Wales law since 1909. The feature of the legislation objected to is to be found in its precursor, the definition in the Law of Libel Amendment Act, 1888 (England) (s. 4) and in the precursor of that provision the Newspaper Libel and Registration Act, 1881 (England) (s.2). The former provision is now repealed by the Defamation Act, 1952, s. 18(3) but the feature objected to is preserved in the new English legislation defining those public meetings the reporting of which is protected (see the Schedule to the Defamation Act, 1952 Part 2 para. 9). It is clear from the Committee proceedings prior to the Act of 1881 that in introducing the privilege to report public meetings concern was felt that a man of straw would be induced to make untrue defamatory statements in public in order to have the material reported (Proceedings of Select Committee on Libel, 1879, pp. 39, 80). In view of the dangers it does not seem possible altogether to remove this requirement, but the situation in New South Wales is at least different from that in England in one respect. A point made to the English Select Committee was that in many cases it would be possible for a speaker to make statements without incurring responsibility because of the requirement of special damage in actions for slander and if the report was privileged no action would lie at all. This does not apply in New South Wales because of the assimilation of slander to libel in this State and the actionability of both without proof of damage. We incline to recommend in the light of these considerations that the bad faith of organizers of a public meeting should not affect the privilege of a person reporting the material in good faith if the meeting was apparently held in good faith. If this was enacted it would enable the privilege to be destroyed by evidence of negligence of the reporter in estimating the good faith of the meeting. With the law in its present state we consider that the privilege might be too easily destroyed by evidence of feelings of the organizers of a meeting towards the plaintiff of which the reporter could not have known.

144. Under the present legislation it is made evidence of bad faith on the part of a person responsible for publication of certain material within s. 14 in a periodical or as part of a broadcast or television programme if he has failed to publish a reply or has done so in an inadequate or unreasonable manner. The material to which this provision applies comprises reports of proceedings of Parliamentary committees, reports of proceedings of official inquiries, publication of notifications from Government sources, reports of proceedings of local authorities and public boards, reports of certain proceedings of the Australian Jockey Club, and reports of public meetings. In making a failure to publish a reply evidence of bad faith the New South Wales legislature is following Sir Samuel Griffith's drafting of 1889 in preference to the English method of handling the matter, which is to withdraw the privilege in the event of such failure. The United Kingdom legislature has followed this approach in 1881 (s. 2), 1888 (s. 4), and 1952 (s. 7). Sir Samuel Griffith criticised the English approach, saying that such failure was evidence of want of good faith, but should not be conclusive evidence of want of good faith and thus what he proposed gave, he thought, a fairer rule than that laid down in the English statute (of 1888) (57 Queensland Parliamentary Debates 736). While, however, it may be conceded to Sir Samuel that if a refusal to publish a reply is followed automatically by withdrawal of the privilege the law may operate unfairly to the defendant, it does not seem that a refusal to publish a reply would necessarily be evidence of malice. If this question is to be dealt with realistically it seems that the judge would have to determine it in the individual case, and the general provisions of the section already provide for this without the need for any specific provision. If Sir Samuel was right that, in the circumstances specified, refusal to publish a reply is always evidence of bad faith there was no need for the provision he proposed, if it is not it would result in the jury being asked in some cases to consider the question of bad faith when there was nothing properly for them to consider. The result would be confusion over the conception of bad faith. We agree with Mr. Hunt somewhat artificial rules as to what is evidence of malice are an unsatisfactory feature of the law of defamation (D.A. Hunt, Address for the Council for Advanced Legal Studies of the New South Wales Bar Association "The Conduct of the Defendant to an Action for Defamation" and we think it appropriate to eliminate the conception of "evidence of bad faith" from the present rule. We think any harshness to the defendant in the English rule will be avoided (and the unfairness to the plaintiff of distinguishing between cases where he was refused his right of reply because the defendant was wrongheaded and those where it was refused because the defendant was malicious, will also be avoided) if the privilege, in those cases where a right of reply is thought appropriate, is withdrawn on the plaintiff showing that the refusal was unreasonable in all the circumstances. It will, of course, be open to the plaintiff, as in all cases within the present s. 14, to demonstrate bad faith in the defendant’s publication, and to make such use of the defendant's conduct in relation to the request for publication of a reply as evidence on that issue as can properly be made in the circumstances (subject to para. 142).

145. The list of reports and notices in respect of which the failure to furnish proper opportunity of reply is made evidence of bad faith, as detailed in the preceding paragraph, derives through the New South Wales Act of 1909 from the English Act of 1888. Sir Samuel Griffith had applied the principle only to reports of public meetings, as did the English Act of 1881, a respect in which the New South Wales Parliament in 1909 did not follow either, since it gave no privilege for reports of public meetings. But the four categories to which it did apply the principle (reports of proceedings of Parliamentary committees, reports of proceedings of public inquiries, Government notices, and reports of proceedings of local authorities and public boards) all resembled categories established by the English Act of 1888. The principle was extended to the newly privileged category of reports of Proceedings of the Australian jockey Club in 1948, and to reports of public meetings in 1958 when this category of privilege was established in New South Wales. Meanwhile the English list of statements which cold be published by newspapers or broadcasting stations subject to a right of reply had been revised by s. 7 and the Second Schedule of the English Defamation Act, 1952 following recommendations of Lord Porter's committee. In making its recommendations the committee stated that the, existing list of privileged reports reflected the matters which were of interest to the public at the close of the nineteenth century when the Law of Libel Amendment Act, 1888 was passed. The Committee considered that changes in social and administrative conditions since that date, and the increasing interest in foreign affairs, had rendered inadequate the categories of reports entitled to privilege, and that the time was now ripe for a considerable extension (Cmd. 7536 p. 25). We have already made suggestions relating to the committee's list of privileged reports of events occurring outside the United Kingdom (Supra paras. 137, 138), to which a right of reply was not attached. The revised list of "local" matters which was made subject to a right of reply (as it appears in the Second Schedule of the English Act of 1952) contains the following items not represented by any real counterpart in s. 14 of the present New South Wales Act:

8. A fair and accurate report of the findings or decision of any of the following associations, or of any committee or governing body thereof, that is to say -

(a) an association formed in the United Kingdom for the purpose of promoting or encouraging the exercise of or interest in any art, science, religion or learning, and empowered by its constitution to exercise control over or adjudicate upon matters of interest or concern to the association, or the actions or conduct of any persons subject to such control or adjudication;

(b) an association formed in the United Kingdom for the purpose of promoting or safeguarding the interests of any trade, business, industry or profession, or of the persons carrying on or engaged in any trade, business, industry or profession, and empowered by its constitution to exercise control over or adjudicate upon matters connected with the trade, business, industry or profession, or the actions or conduct of those persons;

(c) an association formed in the United Kingdom for the purpose of promoting or safeguarding the interests of any game, sport or pastime to the playing or exercise of which members of the public are invited or admitted, and empowered by its constitution to exercise control over or adjudicate upon persons connected with or taking part in the game, sport or pastime, being a finding or decision relating to a person who is a member of or is subject by virtue of any contract to the control of the association.


11. A fair and accurate report of the proceedings at a general meeting of any company or association constituted, registered or certified by or under any Act of Parliament or incorporated by Royal Charter, not being a private company within the meaning of the Companies Act 1948.

146. We incline to recommend, that with the appropriate adaptation to our local situation, and with the appropriate alterations of substance to meet the general principles we have outlined as to the conditions under reports should be privileged (extension of the privilege beyond newspapers and broadcasters, "fairness" as a requisite rather than "fairness and accuracy" etc.), these provisions should be included within the section relating to privileged reports of the proposed Defamation Act, 1969. We consider that the recognition of these privileges will serve the objectives we have outlined of assisting freedom of speech in the fields both of providing information and of discussion concerning matters of importance to the community outside of the strictly political sphere, and in particular will assist public discussion of economic matters and the protection of the investing public, the need of which for legislative protection has been urged in material drawn to our attention. Specifically, we can expect that the inclusion of these paragraphs should deal with the difficulty of the newspaper which complains of insufficient protection in reporting to the general public that persons have been warned off the turf (Supra para. 21).

147. We have considered whether the present provision relating to the publication of Government notices offers insufficient protection to the Press, as has been represented to us (Supra para. 21). The present formulation of the protection by s. 14(1)(g) of the 1958 Act is that it is lawful to publish in good faith for the information of the public "at the request or with the consent of a Government office or department, officer of State or officer of police, a notice or report issued by the office, department, or officer for the information of the public". This provision has undergone drafting alterations in its re-enactment in 1958 which appear to make the protection more ample than that introduced in 1909, which between 1912 and 1958 was s. 29(1)(g) of the Defamation Act, 1912-1948. This last provision was the subject of explanation in Campbell v. Associated Newspapers ((1948) 48 S.R. 301) and the broad interpretation, which was given to it in that case would be equally applicable to its successor. Sir Frederick Jordan there said that the notice or report need not necessarily be written, it might be oral. He pointed out that an officer of police might broadcast the description of a dangerous criminal who had just escaped, requesting the press to publish it, and the public to give information which might lead to his capture. The English Act of 1952 (Para. 11 of the Second Schedule) offers in one respect more ample protection that the New South Wales section by giving protection to a summary. We do not, however, expect to recommend the following of this model in view of the encouragement this might give to alteration of a form of words to which importance might well be attached by the Governmental source issuing the notice in circumstances of the sort the paragraph envisages. It is appreciated that the Press finds it onerous that its motives are subject to examination under the qualified privilege given when all that it has done is to pass on a Government notice. On the other hand the possibilities of misuse of the notice, for example, by issuing the notice at a time when it was obviously unnecessary, and its issue gratuitous, are obvious, and we believe that the newspapers will receive sufficient protection if here, as in the other cases within the section, the provision is made that evidence of bad faith must be provided by the circumstances of the publication before the general question of bad faith inducing the publication can be opened. It is also considered that in the present instance the legislation should protect notices from official sources in all States and territories and the Commonwealth. In the case of notices issued by the police in different States in different forms in relation to the one matter it would seem intolerable that newspapers should have to edit whatever numbers appeared on the streets of a particular State to comply with the local form of notice.

148. We have commented above on those recommendations of Lord Porter's committee for the extension of privilege firstly to certain reports of matters occurring outside the United Kingdom, and secondly to certain reports of matters occurring within England which were made the subject of a right of reply. In addition, certain publications relating to matters occurring within England were recommended for privilege with no right of reply (Cmd. 7536 p. 27). As these recommendations were carried out in the Defamation Act, 1952, they are:

6. A fair and accurate copy of or extract from any register kept in pursuance of any Act of Parliament which is open to inspection by the public, or of any other document which is required by the law of any part of the United Kingdom to be open to inspection by the public.

7. A notice or advertisement published by or on the authority of any court within the United Kingdom or any judge or officer of such a court.

In pursuance of the general objectives we have outlined we incline to recommend that these provisions should be enacted in New South Wales, with appropriate adaptation to local conditions, including, as in the other provisions relating to court proceedings and documents, broadening of the scope of the operation of paragraph 7 to apply to foreign and international as well as local materials.

149. In general no doubt the privilege which is given by s. 14 of the Defamation Act, 1958 applies not only to the publication involved in the original reporting of the proceedings but any republication of the reports involved by displaying reports on library shelves or repeating the matter in them for purposes of discussion. The disseminator of such reports, however, except where he gains some special privilege under a later section of the Act or at common law would appear to be made responsible for the fairness of the original reports. It appears to us that this is an unfair restriction on public professional and academic discussion of matter in reports of official and public materials and therefore we incline to recommend that a person working in good faith with reports of the kinds dealt with in the relevant section of the proposed Defamation Act, 1958 should be protected against the consequences of the report being unfair unless he should have been aware of the unfairness. It is believed that this protection will be especially important in helping to put on a sound basis the defence of fair comment in cases where the comment is on reported materials (See infra paras. 158-159, 165).

150. Section 14(4) of the Defamation Act, 1958 provides that "in any civil Action, any matter of defence under this section may be pleaded specially with a plea of not guilty, or any other plea, without the leave of a judge". A.F. Rath, Q.C., has pointed out that this provision apparently contemplates a state of pleading law in which more than one defence may be pleaded only with the leave of a judge, rather than a state of the law in which a special plea upon a matter covered by the plea of not guilty would not be allowed together with the plea of not guilty. Mr. Rath comments, however, that neither position represented the state of the law at the time when the Act was passed. At that time any number of pleas might be pleaded without leave (Common Law Procedure Act, ss. 91-92 and Order XXX, r. 8). Under s. 61 of the Common Law Procedure Act, he points out, prejudicial or embarrassing pleadings might be struck out, and either under this power or the inherent power of the Court, it would be competent to strike out a plea which was merely an argumentative statement of the general issue. (A.F. Rath’s Address for the Council of Advanced Legal Studies of the New South Wales Bar Association "Pleading and the Onus of Proof in Defamation", p. 8). In view of these observations we incline to recommend that no corresponding provision be inserted in the proposed Defamation Act, 1969. The requirement that a defence under this section be specially pleaded can then conveniently be provided for under a provision in the proposed Second Schedule to the Act subsequently variable by rules. It is proposed that it should be sufficient to plead the words of the particular statutory defence, such further specification of the defence as may be necessary to avoid surprise being provided by particulars (See infra para. 277).

151. In view of the difficulties in relation to the effect of s. 18 of the present Act (Infra paras. 212-214) we incline to recommend specific provision in the present section in relation to the burden of proof of want of good faith to make it clear that it rests upon the plaintiff and requires to be specially pleaded.

152. For the sake of certainty we are contemplating recommending that "The question whether a publication is privileged under any provision of this Act is a question of law in the same manner as questions whether publications are privileged at common law". This general provision would cover inter alia privileged reports.

153. In the light of the suggestions in the preceding paragraphs we would formulate the section relative to privileged reports in the proposed Defamation Act, 1969 as follows:

(1) It is privileged to publish in good faith for public information or for the furtherance of the objective of public enlightenment

(a) a fair report of the proceedings of either House of the Parliament of the United Kingdom or of the Commonwealth of Australia or of the Parliament of this State or of either House or the House of Parliament of any other State or of the proceedings of the legislature of any territory of the Commonwealth of Australia or of the proceedings in public of any part of a central or local legislature in any territory inside or outside Her Majesty's dominions;

(b) a fair report of the proceedings of any committee of any such House or such legislature or part thereof as is referred to in paragraph (a) of this sub-section or of any joint committee of both Houses of the Parliament of the United Kingdom, the Commonwealth of Australia or of the Parliament of this or any other State of the Commonwealth of Australia or of any such legislature as is referred to in paragraph (a) of this subsection;

(c) a copy of, or an extract from or a fair abstract of any report, paper, notes, or proceedings published by order or under the authority of any such House or legislature or part of a legislature as is referred to in paragraph (a) of this subsection;

(d) a fair report of any proceedings in public of any international organization of which countries or their governments recognized by Her Majesty's Government of the Commonwealth of Australia are members or of any international conference to which such countries or their governments send representatives;

(e) a fair report of the proceedings in public of an international court;

(f) a fair report of the proceedings in public of any court of justice exercising jurisdiction whether in Australia or any State or territory thereof or in any country, or subdivision thereof, inside or outside Her Majesty's dominions, whether the proceedings are preliminary or interlocutory or final, or of the result of any such proceedings, unless, in the case of proceedings which are not final or not completed, the publication has been prohibited by the court, but for the purposes of this paragraph defamatory matter ruled to be inadmissible by a court is not part of the public proceedings of the court;

(g) a fair report of the public proceedings of any court martial, or court sitting extraterritorially, established under the law of the Commonwealth of Australia or a State or territory thereof or of any country recognised by Her Majesty's Government of the Commonwealth of Australia;

(h) a copy or a fair abstract of any default judgment or of the entries relative to any default judgment or of any entries open to inspection by the public that are recorded in any books kept in the office of any court of justice in Australia or elsewhere inside or outside Her Majesty's dominions including such courts as are referred to in paragraphs (e) and (g) of this subsection, and a notice or advertisement published by or on the authority of any such court or any judge or officer of such court;

(i) a fair report of the public proceedings of any inquiry held under the authority of any statute or ordinance of the Commonwealth of Australia or its States or territories, or by or under the authority of Her Majesty, or of the Governor-General-in-Council or the Governor of any State, or the administrator of any territory under the authority of an Act of Parliament of the United Kingdom, of Her Majesty or of a Minister of the Crown of the United Kingdom, or under like authority of the governments of other countries recognized by the Commonwealth of Australia inside or outside Her Majesty's dominions;

(j) a fair copy of or extract from any register kept in pursuance of any Act Parliament or ordinance of the Commonwealth of Australia or any State or territory of the Commonwealth of Australia which is open to inspection by the public or of any other document which is required by the law of the Commonwealth of Australia or any State or territory thereof to be open to inspection by the public;

(k) at the request or with the consent of a Government office or department, officer of State or officer of police, in each case of the Commonwealth of Australia or any State or territory of the Commonwealth of Australia, a notice or report issued by the office, department, or officer for the information of the public;

(l) a fair report of the proceedings within Australia or its territories of any local authority, board, or body of trustees, duly constituted under the provisions of any statute or ordinance of the Commonwealth of Australia or any of its States or territories for the discharge of public functions, so far as the matter published relates to matters of public interest, except where neither the public nor any newspaper reporter is admitted;

(m) a fair report of the findings or decision in Australia or to be carried out wholly or partly in Australia of any of the following associations, or any committee or governing body thereof, that is to say -

(i) an association wherever formed for the purpose of promoting or encouraging the exercise of or interest in any art, science, religion or learning, and empowered by its constitution to exercise control over or adjudicate upon matters of interest or concern to the association, or the actions or conduct of any persons subject to such control or adjudication; (ii) an association wherever formed for the purpose of promoting or safeguarding the interests of any trade, business, industry or profession, or of the persons carrying on or engaged in any trade, business, industry or profession and empowered by its constitution to exercise control over or adjudicate upon matters connected with the trade, business, industry or profession, or the actions or conduct of those persons;

(iii) an association wherever formed for the purpose of promoting or safeguarding the interests of any game, sport or pastime to the playing or exercise of which members of the public are invited or admitted, and empowered by its constitution to exercise control over or adjudicate upon persons connected with or taking part in the game, sport or pastime,

being a finding or decision relating to a person who is a member of or is subject by virtue of any contract to the control of the association;

(n) a fair report of the proceedings at a general meeting within Australia of any corporation wherever incorporated, not being an exempt proprietary company within the meaning of the Companies Act, 1961 or a corporation incorporated outside New South Wales to which similar provisions to those which under the law of New South Wales apply to exempt proprietary companies apply under the law of the place of its incorporation;

(o) a fair report of the proceedings of the Committee of the Australian Jockey Club upon the hearing of any appeal to such Committee in accordance with the provisions of section thirty-two of the Australian Jockey Club Act, 1873 as amended by subsequent Acts;

(p) a fair report of the proceedings of any public meeting in Australia or its territories, so far as the matter published relates to matters of public interest,

"Public meeting" in this paragraph means a meeting which reasonably appeared to those responsible for the report at the time of its publication to be a meeting lawfully held for a lawful purpose, and to be for the furtherance or discussion in good faith of a matter of public interest, or for the advocacy or candidature of any person for a public office, whether the admission to the meeting was open or restricted

(q) fair republications of the reports or matter referred to in paragraphs (a) to (p) of this subsection or of parts thereof or of abstracts of the reports or matter or part thereof or of the substance of the reports or matter or part thereof so that however the person republishing the report or matter or part or abstract or substance shall not be affected by unfairness in the original unless he had notice at the time of republication of facts which should have made him aware of such unfairness.

A publication is said to be made in good faith for public information or for the furtherance of the objective of public enlightenment if the person by whom it is made is not actuated in making it by ill-will to the person defamed, or by any other improper motive, and if the manner of the publication is such as is ordinarily and fairly used in the case of matter published for public information or for the furtherance of the objective of public enlightenment.


(2) Nothing in the foregoing provisions of this section shall be construed as protecting the publication of any matter the publication of which is prohibited by law.

(3) In the case of the publication in a periodical, or as part of a programme or service provided by means of a broadcasting or television station and intended for reception by the general public, of any reports of proceedings or findings or decisions or notices referred to in paragraphs (b)(i)(k)(l)(m)(n)(o)(p) and (q) of subsection 1 of this section, the privilege under this subsection will be defeated if it is pleaded and proved that the defendant or his agent was requested by or on behalf of the plaintiff to publish in the manner in which the original publication was made a reasonable letter or statement by way of contradiction or explanation of the defamatory matter and has unreasonably refused or neglected to do so, or has done so in a manner inadequate or not reasonable having regard to all the circumstances.

(4) To establish a defence within this section it shall not be requisite for the defendant to plead or prove the relevant good faith but the defence shall be defeated upon pleading and proof by the plaintiff of want of the relevant good faith.

(5) Unless evidence of the circumstances of a publication itself provides evidence that the publication was not in good faith, other evidence that the publication was not in good faith shall be inadmissible for the purpose of defeating a privilege under this section.

FAIR COMMENT (SECTION 15)

154. Section 15 makes it lawful to publish a fair comment on eight kinds of matters. It is declared that if a comment is not fair, and is defamatory, the publication of it is unlawful, and whether a comment is or is not fair is made a question of fact. The section is identical apart from drafting alterations with ss. 14 and 15 of the Queensland Defamation Law of 1889. Sir Samuel Griffith explained with regard to all the topics covered except one that he was enacting the existing law, or adopting the Indian Code, or the draft criminal code proposed in England in 1879. The exception was the item "to publish a fair comment respecting any public entertainment or sports, or respecting the character of any person conducting or taking part therein, so far as his character appears from the matter of the entertainment or sports, or the manner of conducting the same" (s. 15(g) of the New South Wales Defamation Act, 1958 in substance). Of this Sir Samuel said: "it was suggested to me by a well-known case which occurred in Sydney a few years ago, when some sports and entertainments were carried on in a place down the harbour of a most scandalous character, and the law, as declared by the judges of New South Wales, was not sufficient to protect the person who commented upon those sports and entertainments" (57 Queensland Parliamentary Debates (1889) 737). There was no legislation in New South Wales on the subject of fair comment before 1958.

155. Insofar as s. 15 duplicates the common law it is arguable that it nevertheless serves a useful function in that it permits the issue between the parties to be clarified by the defendant pleading the precise words of a paragraph of the section or more than one paragraph of the section. The decision in Ipec Insurance Ltd. v. Shapowloff ((1967) 85 W.N. 692) assists the effectiveness of this kind of plea by laying down that such a plea is not bad for failing to allege such matters as the truth of the facts supporting the comment since by implication it asserts their truth to whatever extent may be found necessary for a successful defence under the Act. On the other hand the existence of statutory categories of defence may lead to rigidity in the law where flexible development of categories is essential in order to give proper protection to prospective defendants. The impression that the list of categories in the Act is very comprehensive and makes extensive resort to the common law unlikely in the future does not appear to be borne out by an examination of the breadth of the common law on the subject, and may turn out to be an impression created only by the comparatively short time the Act has been in operation. Among the matters on which fair comment is permissible at common law as being of public interest but which are not, or not obviously, within s. 15 may be instanced sermons preached to a congregation or the uses to which the clergyman puts the church or vestry (Kelly v. Tinling (1865) L.R. 1 Q.B. 699) or the management of hospitals and institutions which depend on public rates or subscriptions (Gatley (6 ed. 1967) 341) but which are not necessarily run by a "public officer or public servant" within the meaning of s. 15(d). No doubt University institutions, largely supported by State funds, would come within the common law category but it is difficult to see how the conduct of their affairs and especially their classes would come within the Act. Other common law categories of matters of public interest are instanced by South Hetton Coal Co. v. N.E. News ((1894) 1 Q.B. 133 (sanitary conditions provided for workers by large public company)) and Soane v. Knight ((1827) Moo. & Mal. 74 (the architecture of a public building)). Works of architecture seem to provide a moot case for the operation of the various categories of the Act - obviously in some aspects within the spirit infusing a number of the categories but scarcely within the letter of any. Apart from the incompleteness of the statutory section in relation to the kinds of matters dealt with, there are also a number of problems relating to the geographical location to be implied for some of the things referred to. In paragraph (b) reference is made to the public conduct of a person who takes part in public affairs but there is no indication of what communities' public affairs are covered. Similar problems arise in relation to the public officers and public servants referred to in paragraph (c), the courts of justice referred to in paragraph (d), and the communications to the public in paragraph (h). As the Act is now framed, whenever a matter is covered by the common law but not covered by the Act, the difficulties in the application of the Savings section (s. 3(2)) arise - whether the common law right of fair comment is a "protection or privilege" (Sir Samuel Griffith thought of fair comment, not as a protection or privilege but a "justification" (See para. 117 supra)) and whether the particular matter may be said to be "dealt with" by the Act (Supra para., 77). Under our suggestions for alteration of the savings section, these difficulties would be eliminated but there could be a duplication of pleadings in borderline cases - the pleading of one or more statutory forms of words and a plea of fair comment on a matter of public interest (Supra para. 79). In these circumstances it seems better on balance not to formulate a statutory category of fair comment when a common law category clearly covers the ground and to provide a uniform form of pleading which avoids any duplication (Infra para. 165). We therefore incline to recommend that s. 15 be repealed and that the substance of paragraphs (b)(c)(d)(e)(f)(g) and (h) be not re-enacted.

156. With regard to paragraph (g) respecting comment on sports and entertainments, which Sir Samuel considered to go beyond the common as understood in New South Wales, Gatley asserts the common law position to be that "a public ball, or any exhibition or show to which the public have the right of admission, is a matter of public interest" (Gatley on Libel and Slander (6 ed. 1967) p. 344) citing R. v. Ledger (The Times Jan. 14, 1880), R. v. Flowers ((1880) 44 J.P.). This has been applied in Australia to horse racing, and before the Defamation Law of Queensland was passed, the Victorian Full Court having apparently decided in 1956 (Orr v. McCrea 1 V.L.T. 140) that "a gentleman riding a public race may subject himself to such fair and legitimate comments as may be made on public entertainment" (7 Aust. Digest col. 388) and similar principles were applied to charges of dishonesty in horse racing in De Mestre v. Syme ((1883) 9 V.L.R. (L.) 10 (Vic. Sup. Ct. F.C.)). Moreover, examination of the case to which Sir Samuel Griffith refers as demonstrating the inadequacy of the common law seems to show conclusively that the occasional there was treated as a proper subject of comment and the failure of the defence was due rather to a showing of the defendant's improper motive in the shape of a desire to sell a newspaper by extravagant sensationalism. (The reference is evidently to Moore v. Haynes (1881) 2 N.S.W.L.R. 327 and 350. The defendant newspaperman began by describing the picnic at Clontarf organized by the plaintiff as an orgy, and went on to refer to satyrs and bacchantes, depravity, intemperance, ravages of excess, promiscuous partners, and the devil's mark. The evidence whether the function was decorous was conflicting and the jury gave a farthing damages. The majority of the judges of the Full Court, who were mainly concerned with the question whether some evidence had been improperly admitted, were sharply critical of the tone of the defendant's journalism and the trial judge gave the plaintiff a certificate for costs.) We do not expect to recommend the retention of the provision.

157. In the present Act it is made lawful to publish a fair comment “respecting any of the matters with respect to which the publication of a fair report in good faith for the information of the public is by section fourteen of this Act declared to be lawful”. In view of the extended list of matters contained in the section with which we propose to replace s. 14 (Supra para. 153), and the consequent extension of their subject matter further beyond what may be expected to be held of public interest at common law, it is even more clearly necessary to provide for the subject matter of the privileged reports to be a proper subject of comment. In the present legislation it is only the matters with respect to which reports may be made which are made a proper subject of comment. It is not said, at any rate in terms, that it is permissible to comment on the reports themselves. On the question of the limits at common law of the right to comment on reports there is unresolved conflict and we propose that legislative steps be taken to resolve it as outlined in the succeeding paragraphs.

158. The centre of controversy is in the application of the rule that comment must be on facts truly stated to be protected. According to English authority (Mangena v. Wright (1909) 2 K.B. 958 and Grech v. Odhams Press (1958) 2 Q.B. 275 (C.A.)) this rule does not apply where comment is made on facts stated in a privileged document. "If by some unfortunate error," says Phillimore, J. in the former case "a vote in Parliament recites, or a judge in giving the reasons of his judgment states, that which is derogatory to some person, and the charge is mistaken and ill-founded, and a newspaper reports such vote or judgment, and proceeds in another part of its issue to comment upon the character of the person affected in terms which would be fair if the charge were well founded, the newspaper which so reports and comments should be entitled to the protection of fair comment" ((1909) 2 K.B. at 977). In Bailey v. Truth & Sportsman Ltd. ((1938) 60 C.L.R. 700) Sir Owen Dixon criticised this view of the law, saying that it would enlarge greatly the carefully guarded privilege for fair and accurate reports of parliamentary and judicial proceedings if it were allowable to superadd to such a report of statements reflecting on individuals actually made by members of parliament or by witnesses, counsel and judges, a writer's own comments (60 C.L.R. 721-722). His Honour observed that in many cases the subject matter with which judicial proceedings deal is not itself a matter of public interest, although the proceedings themselves always are (Id. at 722). His Honour conceived that even in discussing public statements which are about matters of public interest "it must often occur that comments are made of a hypothetical or contingent character, that is, made on the avowed assumption that what has been stated is or may be well founded and made in such a way that the hypothesis forms a part of the comment" . Sir Owen believed that in such a case the comment might well be excused as fair comment on the statement (Id. at 723). This part of Sir Owen's position was itself criticised by Sir Hayden Starke in the same case, who said that "a good deal may be said for the view that a person is entitled to the protection of fair comment as upon facts truly stated if his comments are based upon the findings of fact or conclusions of parliament or of a commission or other tribunal" (Id. at 717). His Honour considered that "the proposition that comment is permissible if introduced by the hypothesis that the facts found by the tribunal may be but are not necessarily true is attractive but not particularly practical"(Id. at 717-718). Sir Edward McTiernan considered that comment might properly be made on the fact that a Royal Commission made allegations provided the comment did not assume that they were true (Id. at 730). Sir John Latham left the matter open (Id. at 710). In Orr v. Isles ((1966) 83 W.N. (Pt. 1) 303) the matter became involved in the difference of opinion between Mr. Justice Walsh and the majority of the Full Court on the issue whether it was necessary to a plea of fair comment that the facts on which the comments were made should be truly stated, Mr. Justice Walsh claiming that the cases on comments on privileged reports (such as Wason v. Walter (1868) L.R. 4 Q.B. 73 and Thompson v. Truth & Sportsman Ltd. 31 S.R. 292 and 34 S.R. 21) show that it is sufficient that the published matter on which a comment is made should be privileged without it having to be shown to be true (Id. at 308 ff). Mr. Justice Taylor per contra does not agree that the cases dealing with comments on reports establish any exception to the rule that the facts commented on must be true. It depends a great deal, he says, on what is the subject matter of the comment. If it is the privileged report itself and what is said by way of finding conclusion or recommendation the comment on these matters would be comment on facts. The findings, conclusions or recommendations would have to be accurately stated and commented on as such. If, on the other hand, the subject matters of the comment are primary facts taken from a report which, although stated in the report to be true, are in fact untrue, then, in Mr. Justice Taylor's opinion, the plea may well fail.

159. In our view wide protection should be given to comments on privileged reports, including the reports specified in the proposed replacement for s. 14 as well as documents which would be privileged absolutely at common law. In view of the public and usually official origins of the material these reports contain they must constitute the core of source material for informed and responsible comment and academic work. It does not seem practical, as Sir Hayden Starke says, for the truth or otherwise of matter in reports always to be left on the basis of hypothesis, nor, however, does it seem necessary or desirable that the person commenting should assert such truth as if it were of his own knowledge instead of way of inference from the report - as comment on the report. To avoid distinctions which will complicate the task of comment, but nevertheless to preserve this last, which seems essential, we incline to recommend legislation in the following terms:

(1) For purposes of the defence of fair comment there shall be included among the matters which are permissible subjects of comment as being matters of public interest the matters with respect to which a publication is permitted under the last two preceding sections and those publications themselves, and it is declared that a permissible kind of comment on such matters or publications shall be inferences as to the truth of such matters or publications.

160. Judges and text writers have pointed to a number of difficulties in the way of determining the meaning of the term "fair" as it appears in the present legislation. There is no reference in the section to any requirement of good faith and Professor Brett has suggested that the effect ;-s that a "fair" comment is lawful even though it is inspired by malice (P. Brett, "Civil and Criminal Defamation in Western Australia" (1951) 2 Annual L.R. 43 at 51). The President of the Court of Appeal recognizes this possibility in Clines v. Australian Consolidated Press Ltd. ((1966) 84 W.N. (Pt. 2) 86 at 91). In an address Mr. Justice Walsh repeats this question and raises the related question whether the word "fair" has an objective sense or a subjective or personal connotation and the further question whether the term imports the common law rule that there cannot be fair comment if the comment is based upon facts which are not true (Address for the Council for Advanced Legal Studies of the New South Wales Bar Association “The Defamation Act, 1958 and the Common Law” p. 24). We have referred to the disagreement about the position prior to the present Act upon this last matter by the members of the Court of Appeal in Orr v. Isles (Supra para. 158) but the subject has a considerable history in New South Wales which we briefly review in the next paragraph.

161. Goldsbrough v. John Fairfax & Sons Ltd. ((1934) 34 S.R. 524) Sir Frederick Jordan expressed the opinion that where a person was sued in respect of a publication consisting of defamatory fact and defamatory comment upon those facts then, unless the defendant was prepared to establish that both facts and comment were true and the publication for the public benefit, it would be necessary for him to justify the publication of the facts by showing that they were true and published for the public benefit and to defend the publication of the comment by showing that it was based upon those facts which were true and published for the public benefit (34 S.R. at 533-536). Mr. Justice Halse Rogers (at 545) agreed that a defence of fair comment on a matter of public interest should not be allowed to succeed unless the publication of the factual matter complained of could be shown to be for the public benefit. To his mind it was "entirely illogical that mere truth should not be a defence unless publication was shown to be for the public benefit, and yet mere truth coupled with some comment or other which might be decided to be fair should afford a defence" (Ibid.). His Honour added that the whole position might well be simplified by legislation, as difficulties were bound to recur. "The distinction between public interest and public benefit," he said "is, in my opinion, not worth preserving in defamation actions" (Ibid.). The views of Sir Frederick Jordan and Mr. Justice Halse Rogers were applied by the present Chief Justice of the Supreme Court in Thornton v. Lang ((1945) 62 W.N. 163) but were criticised in Jones v. Skelton ((1961) 78 W.N. 873 (F.C.)). Sir William Owen pointed out that until Goldsbrough's Case it had always been thought that where a publication contained defamatory statements of fact and defamatory comment on those facts a defence of fair comment was made out if the facts stated were shown to be true and the comment was fair, provided also that the publication was on a matter of public interest. He thought it unlikely that if the legislature had intended the requirement of proof of truth and public benefit to apply in relation to this matter it would have made the issue of public benefit one for the jury while the question of public interest was for the judge (78 W.N. at 874-875). Mr. Justice Ferguson expressed the opinion that the view taken prior to Goldbrough's Case was the correct one (79 W.N. at 880). Mr. Justice Brereton contented himself with saying that the views in Goldbrough's Case would have to be re-examined in view of the saving in s. 33 of the Defamation Act, 1912 of "defences under the plea of not guilty which it is now competent for the defendant to make" (Jones v. Skelton concerned a set of facts occurring prior to the commencement of the Defamation Act, 1958 which repealed s. 33). On appeal to the Privy Council in Jones v. Skelton ((1963) 80 W.N. (Pt. 1) 1061) Lord Morris delivering the judgment said that one result of the decision in Goldsbrough's Case was that a careful summing up involved explanations and elaborations which might well be bewildering even for the most attentive and painstaking jury and that this was particularly to be regretted in the branch of the law relating to defamation (Id. at 1067). Orr v. Isles ((1966) 83 W.N. (Pt. 1) 303), like Jones v. Skelton, was a case dealing with facts occurring before the commencement of the 1958 Act. In it Mr. Justice Walsh took the view that Goldsbrough's Case was authority for a general proposition that defamatory facts on which comment was based had to be defended on some basis independent of the defence of fair comment - either as being true and published for the public benefit or as being privileged and the comments on those facts could not themselves be protected as fair comment unless such protection was made out for the facts. The other members of the Court considered, however, that if the facts were true and the matter of public interest, the defendant was not required to defend them independently of his plea of fair comment to the comments made upon them, but it was no protection for the comment, if the facts on which they were based were not true, to show that the publication of those facts was privileged. In Denham v. Mirror Newspapers Ltd. ((1966) 86 W.N. (Pt. 2) 1) Mr. Justice Walsh said that in Orr v. Isles the majority of the court settled the position before the Act but that it did not necessarily follow that the same rulings were applicable to a plea based on s. 15 of the Act (Id. at 4). The Act did not say expressly that proof of the truth of the facts was essential to a defence under s. 15 and he did not think it obvious that it was so (Ibid.). Similarly, in Justin v. Associated Newspapers Ltd. ((1966) 86 W.N. (Pt. 1) 17) Mr. Justice Jacobs points out that "the statute does not require that a comment be only considered fair if made on true facts" (Id. at 52).

162. In view of the sharp and continuing differences of opinion concerning the position in respect of the matter discussed in the last paragraph, both before and after the Act of 1958, we incline to consider that it should be clarified by legislation. With the greatest respect to those judges who have taken different views of what is the appropriate rule, we incline to recommend that the solution proposed by Mr. Justice Halse Rogers should be adopted. We agree with his Honour that it should not be possible to make defamatory matter of fact, of which the law would not permit publication, defensible by the expedient of adding a comment to it. This involves the rejection of the majority view in Orr v. Isles whereby the defensibility of the comment, as being fair and on true facts of public interest, makes it unnecessary to make any independent protection of the facts themselves appearing in the publication. With great respect, we feel this approach does not conduce to clarity, since it means that the plea is only directed to the comment although it refers to the facts as well, but once the plea is established its effect is to protect the facts by protecting the comment. We think that the more complicated form of plea which we will suggest to give effect to Mr. Justice Halse Rogers' view is justified by the less mysterious directions which would have to be given to a jury. In substance as distinct from form, the position contended for by the majority in Orr v. Isles will be achieved by the adoption of Mr. Justice Halse Rogers' suggestion that the defence of justification in relation to matters of fact should be made out not by a showing of truth and publication for the public benefit but by a showing of truth on a matter of public interest. Since the matter of public interest which arises in connection with the justification of the facts will then be for the judge and the same matter arising in connection with the protection of the comment will also be for the judge, the complications in directing juries which disturbed Lord Morris in Jones v. Skelton will disappear. Mr. Justice Walsh's view that fair comments on assertions of fact which can be protected as privileged though not shown to be true is not in terms provided for by giving effect to Mr. Justice Halse Rogers' proposed reform. We have, however, already (Supra para. 159) suggested recommendations which will permit comment on reports including comment by way of inference as to their truth and falsity which appears to achieve the effect at which he aimed in relation to the particular category of privilege (privileged reports) from which his examples were taken. To extend the right of fair comment as such to comments on privileged material beyond this would, we believe, lead to a confusing duplication of defences. For the defence of privilege at common law makes no distinction between fact and comment as such and to the extent that publication of the facts was thought proper, proper comment would also be protected. Any attempt to establish a right to comment on privileged statements of fact by legislation would seem to be either unnecessary - if it did not go beyond the right existing under privilege - or undesirable - if it permitted wider latitude of comment than the scope of the privileged occasion.

163. The major step in implementing our suggested recommendations in the present matter is part of a general alteration in the conditions of the defence of justification which is dealt with below (paras. 174-175). We incline to recommend the following form of words for taking the step of making it clear that the facts on which comment is made have to be justified independently of their relation to comment which is the subject of a successful plea of fair comment:

(2) A plea of fair comment shall be construed as a plea to so much of the matter complained of as consists of comment only but where the publication of the comment is accompanied by publication of defamatory facts on which the comment is made the plea of fair comment shall be coupled with a plea of justification of the factual matter in terms of what is required by section [the general justification section) of this Act or a plea alleging that the factual matter is a true account of matter privileged under sections [the privileged report sections] of this Act or itself constitutes such matter and it shall not be necessary in such pleas to specify what of the matter published is fact and what is comment.

164. It is necessary to complete the implementation of Mr. Justice Halse Rogers' proposal to provide that the plea of fair comment shall not succeed unless the plea to the facts with which it is coupled succeeds (though there is no reason why the converse should apply). However, if the success of the plea of fair comment were made invariably dependent on the success of the plea to the facts, a statutory reversal of the decision in Davies Bros. v. Bond ((1912) 13 C.L.R. 518) would apparently be effected. The facts were that an alleged libel contained two statements of fact and comments based on both of them combined. One of the statements was found by the jury to be untrue (it was inaccurate in a minor particular) and they awarded one penny damages in respect thereof but stated that in their opinion the comment was fair. The High Court of Australia refused to disturb the finding, Sir Isaac Isaacs pointing out that the untrue statement did not contain the only alleged facts before the jury, that there were others of a similar nature which the jury apparently accepted and which were in themselves sufficient to sustain the comments complained of (Id. at 527). To preserve this decision we incline to recommend that the provision under consideration should be made subject to the next succeeding subsection, and that the next succeeding subsection should contain the substance of s. 6 of the Defamation Act, 1952 (United Kingdom), which it has been represented to us should in any case be made part of New South Wales law (Supra para. 22). In our opinion, in the light of the High Court case, the passage of the English section will make no difference to the law in New South Wales and is recommended only to prevent the clarification of the required relationship between comment and the facts commented on, which we are also recommending, from altering the law in the present respect. We tentatively propose the following form of words:

(3) Subject to the next succeeding subsection, while it shall be unnecessary to a finding that the allegations of the plea to the facts referred to in the last preceding subsection are established that the allegations of the plea to the comment therein referred to are established, it shall be necessary to a finding that the allegations of the plea to the comment therein referred to are established that the allegations of the plea to the facts therein referred to are established.

(4) In any action for defamation in respect of words consisting partly of allegations of fact and partly of comments thereon, a defence of fair comment shall not fail by reason only that the truth of every allegation of fact is not proved if the comment is fair having regard to such of the facts alleged or referred to in the words complained of as are proved and the allegations of the plea of fair comment shall be construed accordingly.

165. We think it desirable to clarify further the above matters by providing for the form of pleading in the Second Schedule to the Act (which we propose should be a set of rules to be subject to amendment by Rules of Court). At common law the defence of fair comment might be raised under a plea of not guilty, but following Goldsbrough's Case (Supra), in which comments were made on the desirability of establishing the necessity for a special plea, a rule making such pleading compulsory was made on 10th September, 1934 (Rule 78A). This provision has remained with a short gap in time due, as the President of the Court of Appeal has said, apparently to inadvertence (See Orr v. Isles (1964) 82 W.N. (Pt. 1) 103 at 106), until it was absorbed in the new Order XXX r. 30A in 1962 providing for special pleas for all defences of protection, justification or excuse to actions for publication of defamatory matter. We consider that the necessity for a special plea should be preserved whether the matter on which the comment is made is matter of public interest at common law or by statute and that this should generally be provided for by rule even though in the case of defamatory comment on defamatory allegations of fact the requirement of a special plea is at least implied in the words we have recommended to be part of the statute itself. We therefore tentatively propose:

(1) The plea of fair comment shall in all cases be specially pleaded.

(2) Where the allegations of fact on which the comment is made are not defamatory or, whether or not defamatory, have not been published by the defendant or any person for whom he is responsible, the following form of plea of fair comment shall be sufficient:


"That the alleged defamatory matter consists of fair comment made in good faith and without malice upon a matter of public interest and that the subject matter upon which the said comment was made was true in substance and in fact (or (reported) matter the publication (reporting or republication) of which was privileged under section or section of the Defamation Act, 1969) [the sections relating to privileged reports]”;

(3) Where the allegations of fact on which the comment was made are or include defamatory statements of fact for which the defendant is responsible the following form of pleadings shall be sufficient as comprising a plea respecting the defamatory allegations of fact and a plea respecting the comment:

"For a plea to so much of the said words as consist of allegations of fact that they are true in substance and in fact and concerning a matter of public interest (or that they are a true account of (or constitute) (reported) matter the publication (reporting or republication) of which was privileged under sections or [the sections concerning privileged reports] of the Defamation Act, 1969) and for a plea to so much of the said words as consist of comment that they are fair comments made in good faith and without malice upon so much of the said words as consist of allegations of fact which allegations of fact are as described in the foregoing plea to such words (and upon other subject matter [repeating if necessary so much as is relevant of the latter part of the plea set out in subrule (2)])".

166. It has been represented to us that the provision in the present rules whereby particulars are required of what is fact and what is comment is unfair to the defendant (Supra para. 45). The present Order XIV r. 18A(1) provides:

18A. Without limiting the generality of or in any other way affecting the preceding rule, [the rule giving general power to order particulars of a claim or defence] a judge may at any stage of an action for defamation order that the defendant shall -

(1) Under any plea of fair comment -

(i) if any facts outside those stated in the alleged libel are relied on as the basis for the comment, give particulars stating such facts;

(ii) if facts stated in the alleged libel are relied on as the basis for the comment, give particulars stating which of the words complained of are alleged to be statements of fact and which of such alleged statements of fact are so relied on;

(iii) in either case, give particulars of facts and matters relied upon to establish the truth of the statements of fact so relied on and for the purpose of this rule "plea of fair comment" includes the plea known as the "rolled up plea".

We incline to recommend that this rule shall be included in the body of rules to be contained in the Second Schedule to the proposed Defamation Act, 1969, subject to the addition of the words "to the extent that he is legally required to establish such truth" (to deal with the special case of privileged reports) after the word "on" in subparagraph (iii). In view of the wide latitude allowed to the defendant, under the form of pleading we incline to recommend, to leave these questions open in his pleadings, it would seem essential to the preparation for and expeditious conduct of the trial that these particulars should normally be given. This view was also by Lord Porter’s committee who recommended that the plaintiff be entitled to particulars of facts relied on by a defendant in support of a rolled up plea. Rule 18A has survived a challenge to its validity in Denham v. Mirror Newspapers Ltd. ((1966) 86 W.N. (Pt. 2) 1), which challenge was based on the argument that the rule empowering orders particulars was inconsistent with the rights given to a defendant by s. 15. In drafting the replacement for s. 15 we have had regard to the importance of ensuring the absence of any conflict, and the inclusion of the replacement for r. 18A in the Second Schedule to the Act should then ensure that no implication is drawn from the section affecting the validity of the rule. The alteration in the wording which we have suggested should also deal, to the extent that we believe it possible to do so in the light of considerations mentioned earlier, with Mr. Justice Walsh's criticism in Denham v. Mirror Newspapers Ltd. (Id. at 4) that the rule, perhaps wrongly, assumes the necessity to show truth of the matter commented upon.

167. Apart from clarifying the bearing of the relationship between the facts and the comment on the fairness of comment, we consider that legislative action should be taken to clarify the other main source of difficulty noted (Supra para. 160) as affecting the interpretation of fairness - the question whether there is under the present law a subjective element in fairness and whether the defence is dependent on the absence of improper motive. It does not seem satisfactory merely to dispose of this difficulty by repealing the present s. 15 which attempts to specify the conditions under which the defence of fair comment will apply and by then leaving the present matter to the common law. For this is an aspect of the common law which is itself in a confused state. On the one hand there is a view expressed by high authority that fairness in this context is a misnomer. In Turner v. Metro-Goldwyn-Mayer Pictures Ltd. ((1950) 1 All E.R. 449) Lord Porter said that "the question is not whether the comment is justified in the eyes of the judge or jury, but whether it is the honest expression of the commentator's real view and not mere abuse or invective under the guise of criticism" (Id. at 461). His Lordship criticised the statement of Lord Esher in Merivale v. Carson ((1887) 20 Q.B.D. 275 at 281) that the test was whether any fair man, however prejudiced he might be, however exaggerated or obstinate his views, would have written the criticism. Lord Porter said that he would substitute "honest" for "fair" lest some suggestion of reasonableness instead of honesty should be read in (Ibid.). The editor of the Law Quarterly Review, Professor A. L. Goodhart, warmly welcomed Lord Porter’s expression of view saying that “there are in other branches of the law numerous misleading legal terms, but none so inept as the phrase ‘fair comment’” and that “if Lord Porter’s suggestion that ‘honest’ should be substituted for ‘fair’ were adopted by the judges and textbook writers a dangerous source of confusion would be eliminated”. This view was applied by Lord Denning to protect honestly made criticisms in Slim v. Daily Telegraph Ltd. ((1968) 2 W.L.R. 599 at 607) even to the extent of drawing the conclusion that if the comment was honestly made, there was no liability for careless expression giving rise to possibility of people imagining that serious imputations were involved. (But quaere whether this is consistent with the views of other members of the Court.) On the other hand it seems clear from Mr. Justice Windeyer's, remarks in Australian Consolidated Press Ltd. v. Uren ((1966) 40 A.L.J.R. 142) that he considers the effect of Thomas v. Bradbury, Agnew & Co. Ltd. ((1906) 2 K.B. 627) to be that the defendant must first show the comment to be fair in an objective sense before the onus is put on the plaintiff to establish that it was made from an improper motive. The report of Lord Porter's committee appears, with respect, to be internally inconsistent on this matter. It is there said that "if 'fair comment' is pleaded, the defendant is entitled to succeed if he satisfies the Court that the opinion which he expressed, although it may be exaggerated, obstinate or prejudiced, was in fact honestly held by him" (Cmd. 7536 p. 22). Yet, in recommending a relaxation of the rule that the comment must be based on true facts, the committee says that it recommends that the defence should not be affected, though some of the facts are untrue, if the comment is "fair" on the true facts (Id. p. 23). If "fair" only means "honest", as the committee goes on to say is the case in this context as well, it is hard to see how the fairness could vary in relation to the facts. Section 6 of the Defamation Act, 1952 (U.K.), which gives effect to this recommendation of the committee, and the adoption of which we have proposed (Supra para. 164) states that the defence is not to fail where some facts are shown to be false "if the expression of opinion is fair comment having regard to such of the facts alleged or referred to in the words complained of as are proved" . It seems to us that the notion that "fair" means "honest" would be inconsistent with the implication of the statutory language, and that a statutory definition of fairness is desirable to reduce uncertainty and to reconcile as far as possible the divergence between the objective and subjective approaches. We tentatively propose:

(5) In any action for defamation where fair comment is pleaded and the necessary matters in relation to the facts on which the comment was made are proved, then, subject to the failure of the plea through proof by the plaintiff of improper motivation of the comment, the comment shall be considered "fair" if the proven circumstances of the publication are consistent with the matter of the comment having been honestly inferred from the facts on which it was made.

168. In view of the provision already made for particulars of the facts on which the comment complained of by the plaintiff was made to be required of the defendant, it would seem to be unduly onerous to require the defendant to give further particulars to show "fairness" in the sense that the making of the comment in the circumstances was not inconsistent with his honestly having derived the comment by way of inference from the facts on which the comment was made. We therefore incline to recommend that a rule be included in the Second Schedule in the following terms:

In an action for defamation in which fair comment is pleaded the defendant shall not be required to give particulars of fairness over and above particulars of the facts on which the comments were made.

169. The matter of "fairness" as we have defined it is in our tentative view one suitable for determination by a judge rather than a jury, (who determine it under s. 15 of the 1958 Act) and since honesty will often come, into issue in connection with malice, it would make the direction to the jury unduly complicated if they had to be instructed on the question of fairness as well. The question of what is a matter of public interest is under the common law one for the judge and obviously rightly so, since it would be intolerable if what is a matter of public interest and could be the subject of comment were to vary from case to case with the predilections of the individual jury. What is fact and what is comment is under the present law a matter for the jury, except where particular matter can only be one or the other (St. Ledger v. Brennan (1927) 28 S.R. 23). Since, however, this will generally be a question of interpretation in which written materials will play a large part, it seems desirable that this too should be determined by the judge with resort to the assistance of the jury if it depends upon disputed facts. This means that the questions for the jury would normally be the truth or otherwise of the facts commented upon and whether malice induced the comment, assuming that the judge considered there was evidence of malice to go to the jury. Once it is agreed that the judge determines the major question calling for evaluation - what is of public interest - there seems to be no point in arguing that the liberty of the subject is preserved by leaving minor questions of evaluation and interpretation of the facts to the jury. We therefore incline to recommend in the proposed section this subsection:

(6) In actions for defamation where fair comment is pleaded the question whether matter is fact or comment, the question whether comment on justified allegations of fact is fair, and the question what is a matter of public interest are questions of law. The question whether allegations of fact are true and the question whether comment is actuated by an improper motive are questions of fact, subject to it being determined as a question of law that there is evidence of such actuation to go to the jury, and the onus of proof of such actuation shall lie on the plaintiff.

170. In framing the pleas of fair comment (Supra para. 164) we have followed tradition in making the allegation of absence of malice part of the pleas, despite the fact that the onus of proof of these matters rests upon the plaintiff. Though the matter is perhaps not of great importance in most cases, we recognize that there are arguments for excluding the allegation of lack of malice from the plea in the light of the exclusion of the allegations of malice from the declaration we have suggested, and would on the whole prefer a rule requiring a replication alleging malice from a plaintiff who wishes to make this an issue.

171. In the event that our proposed recommendations for the repeal of s. 15 of the Defamation Act, 1958 were not implemented, attention would need to be given to the concluding words of the section. These are that "If it (i.e., a comment) is not fair and is defamatory, the publication of it is unlawful". Mr. A. F. Rath, Q.C. has raised the question whether this round assertion of unlawfulness deprives the comment in such circumstances of other protection than the defence of fair comment itself, e.g. , the defence of absolute privilege (A. F. Rath, Q.C., Address for the Council of Advanced Legal Studies of the N.S.W. Bar Association "Pleading and the Onus of Proof in the Action of Defamation" p. 3). Such a result can scarcely have been intended and would no doubt cause great surprise, but is arguably correct on ordinary principles of interpretation. The presence of these final words of the section seems unnecessary in any case.

JUSTIFICATION (SECTION 16)

172. Section 16 of the Act of 1958 provides that "it is lawful to publish defamatory matter if the matter is true, and if it is for the public benefit that the publication complained of should be made". This is identical with s. 16 of the Queensland Defamation Law of 1889 and reproduces part of the substance of s. 7 of the New South Wales Defamation Act, 1912 , with the drafting style altered to adopt Sir Samuel Griffith's style of setting out defences (as to which see supra para. 118). At common law truth alone is a defence in civil actions, but the requirement of publication for the public benefit has been the law in New South Wales and Queensland since 1847, when Queensland had not been separated from New South Wales and the present position was introduced by 11 Vic. No. 13 s. 4. The New South Wales legislation previous to 1958 followed the form of the Act of 1847 which required that "it shall be necessary for the defendant in his plea of justification to allege that it was for the public benefit that the said matters charged should be published and the particular fact or facts by reason whereof it was for the public benefit that the said matters charged should be published" (s. 4 of the Act of 1847, s. 7(2) of the Act of 1912). Following the omission of this matter from the 1958 Act, it was provided by Order XXX Rule 30A of the Supreme Court Rules that "in an action for the publication of defamatory matter defences of protection, justification or excuse by law shall be pleaded specially" (Gazette 8.6.62). At the same time it was provided by Order XIV Rule 18A(2) that a judge may at any stage of an action for defamation order that the defendant shall under any plea of truth and public benefit give particulars of facts and matters relied on to establish (1) that the publication was made for the public benefit and (2) the truth of the words complained of. Thus the requirement of a special plea is now imposed by rule instead of Act and the general power to order particulars is reinforced by specific provision that particulars may be ordered not only of the matter formerly required by legislation to be given in the plea but of truth as well. By s. 4 of the Act of 1847 (in the 1912 Act s. 7(3)) public benefit is made a jury matter. There is no corresponding provision in the Act of 1958 (but compare s. 19).

173. In introducing the provision in the Queensland defamation law which constitutes the present section Sir Samuel Griffith was brief, no doubt because he was content that a position should continue which had remained the law in Queensland for some forty years. "I do not understand," he said "why it should be allowable to tell stories about a main - stories that serve no useful purposes and only do injury - unless for the public benefit, and I think we had better leave the law as it stands" (57 Queensland Parliamentary Debates (1889) 737). In Australian Consolidated Press Ltd. v. Uren ((1966) 40 A.L.J.R. 142 at 149) Sir Victor Windeyer observed that while Queensland inherited the law of New South Wales in this respect and did not alter it, Victoria, which also inherited it, abandoned it, and Western Australia and Tasmania later adopted it (these are the other "code" States). In Lang v. Willis ((1934) 52 C.L.R. 637 at 650) Sir George Rich said of a provision associated with the one under discussion in the Act of 1847 that it “was required to meet the hard conditions of pioneer days”. But although the present provision is sometimes supposed to have been designed to protect the emancipists, and although the Governor's correspondence in connection with the introduction of the legislation in 1847 might be taken to support this, it also pointed out that its origin is the report of a Committee of the House of Lords whose recommendations led in the United Kingdom to the passage of Lord Campbell's Libel Act in 1843 (6 & 7 Vict. c. 96). In Orr v. Isles ((1964) 82 W.N. (Pt. 1) 103) the President of the Court of Appeal observes that the United Kingdom Act of 1843 adopted the recommendation of the select committee only in relation to criminal trials, and that the report of Lord Porter's committee (at para. 75) indicates that this was unnecessary because truth and public benefit was required to be shown for a defence of justification to criminal proceedings before 1843. At any rate the history shows that the general argument that denigration of the character of another, even though true, is impermissible unless beneficial to the public, has not been founded only on considerations of the conditions of the colony in 1847 and the rule cannot be regarded as due for repeal simply because no emancipists survive. We have seen (Supra para. 23) that those making representations to the Commission were split in opinion on the question whether the requirement of public benefit should be eliminated. In our provisional view the position should be maintained that merely wanton destruction of reputation by publication of true defamatory matter is impermissible, but the law should be altered to give better effect to this principle by the means discussed in the following paragraphs.

174. We have already referred to the unsatisfactoriness of the situation in which what is considered of public benefit varies from case to case with the predilections of the individual jury (presuming the silence of the Act of 1958 continues the existing law in this respect) while the conception of what is of public interest for the purposes of the common law defence of fair comment maintains a degree of consistency coupled with some flexibility in relation to changing needs by being made a question of law (See supra para. 169). It appears to us that the law should seek to achieve what degree of consistency is possible in this matter so that members of the public can be aware beforehand in general terms on what subjects it is lawful for them to publish defamatory matter. We incline to recommend therefore that the conception of "truth on a matter of public interest" should replace the conception of "truth and public benefit" as the specified conditions for a successful defence of justification. "Public interest" has the advantage of being a recognized conception which will not require fresh delineation as would be the case for example, if public benefit were preserved as a determining conception and made a question of law. It has the advantage that a wide spectrum of public interests have always been regarded as within the legal conception cultural as well as political. For these reasons it provides a suitable model for calling a halt to the proliferation as a result of the passage of the 1958 Act of conceptions related to public interest but differing in formulation if not necessarily in substance, and calling for judicial exploration and determination of the question of possible differentiation among their fields. Apart from the notion of publication "for the information of the public" in s. 14 (which we do not consider can be assimilated to publication "in the public interest" and must remain a separate conception - see supra para. 138) there is reference to matters "of public concern" (in the definition of public meeting in s. 14 (which we have amended in the suggestions formulated in para. 153 supra in accordance with the views expressed in the present paragraph), to publication, "for the public benefit" (s. 16, the subject of our present discussion) to publication "for the public good" (privileged under s. 17(c) the relationship of which conception to public benefit caused disagreement between Tasmanian judges in Tisdall v. Hutton (1944) Tas. S.R. 1) and to discussion of a "subject of public interest, the public discussion of which is for the public benefit" (privileged in certain circumstances under s. 17(h)). By s. 19 one of the elements in this last complex conception, the question "whether the public discussion of any subject is or is not for the public benefit", is made a jury matter. The existence of this variety of concepts makes urgent a re-examination of the question of the necessity for the complexity they cause. The reasons for the variety appear to be largely historical rather than substantial. In the Indian Penal Code of 1860 a defence of qualified privilege was made out, inter alia, if an imputation was "for the public good" (s. 499, ninth exception). This was adopted in the Queensland Defamation Law of 1889. Likewise the Indian Penal Code established the defence of justification by laying down that "it is not defamation to impute anything which is true concerning any person, if it be for the public good that the imputation should be made or published" (s. 499, first exception) . Sir Samuel Griffith did not adopt this formulation, presumably as appears from his remarks that we have quoted, because he did not wish to alter the existing law in Queensland which was formulated in terms of public benefit. So Queensland, and now New South Wales, acquired two differently formulated conceptions. At the time when Sir Samuel Griffith continued it, the conception of .,public benefit" had already been adversely criticised by New South Wales judges. In McIsaacs v. Robertson ((1864) 3 S.C.R. 51) the New South Wales Full Court was concerned with circumstances involving an accusation of swindling against the plaintiff in the presence of two persons about to have business transactions with him. The court could not see how the disclosure could be for the public benefit though it might be for the benefit of the persons to whom it was made. The statute was criticised as being itself prejudicial to the public interest, and it was pointed out that it had already at that time been repealed in Victoria. We have already referred (Supra para. 161) to the strong criticism in Goldsbrough v. Fairfax of the distinction between public benefit and public interest and the difficulties caused in fair comment cases, especially by the distribution of functions between judge and jury which results on the view that the requirement of publication for public benefit must be satisfied in order to defend publication of the facts the subject of such cases. This matter is noticed in passing by the President of the Court of Appeal in Orr v. Isles ((1964) 82 W.N. (Pt. 1) 103 at 109). In an address Mr. Justice Walsh recalled Mr. Justice Halse Rogers' criticism and himself doubted whether there was any sensible distinction between public good and public benefit (Address for the Council for Advanced Legal Studies of the New South Wales Bar Association "The Defamation Act, 1958 and the Common Law" p. 19). For ourselves we do not consider that the concept of "public concern" is necessary since it is clear that "public interest" does not refer to everything which happens to interest the public in fact (e.g., risque stories) but what is considered properly to interest the public, in other words, what is of concern to them. Hence we incline to recommend that "public interest" should be substituted for "public benefit" as the description of the matter to be established as part of the defence of justification.

175. The abandonment of the attempt to state a code of the substantive law of defamation which we have proposed (Supra para. 70) means that the section to be substituted for the present s. 16 should be drafted as an amendment to the common law, as New South Wales legislation was before 1958, rather than as an exception to a general statutory principle of unlawfulness of publication of defamatory matter, as is the present section. The introductory words of the pre-1958 legislation, which might naturally be adopted in these circumstances, have, however, been subjected to judicial criticism. Section 7(1) of the 1912 Act stated that in an action for defamation, whether oral or otherwise, the truth of the matters charged should not be a defence to such action unless it was for the public benefit that the said matters should be published. This emphasis on what was a defence to an action would appear to have been due to a desire to confine the legislation in its effect to civil proceedings and not unnecessarily to make provision for a similar defence to criminal proceedings. However, in Howden v. "Truth" and "Sportsman" Ltd. ((1937) 58 C.L.R. 416), Mr. Justice Evatt (At 431) suggested that s. 7 seemed to assume that if truth and public benefit were relied upon it must be as a defence to the action and would not be successful as a defence in relation to part of the defamatory matter. Failure of the defence in relation to any of the matters charged would, in the view he suggested, mean that it failed as to all. He thought, moreover, that the analogy of the English Lord Campbell's Act rather told against the theory that s. 7 could be invoked distributively. However, in Howden v. "Truth" and "Sportsman" Ltd. (No. 2) ((1938) 38 S.R. 287) an argument based on Mr. Justice Evatt's dicta was rejected on the ground that "action" might mean the relevant part of an action (At 293) and that sometimes severance in a plea of truth and public benefit would be allowed to stand. In these circumstances we conceive that it will cause least likelihood of disturbance to the development of the law in this respect if the words "or severable part of such action" are added to the present terminology to serve as an obvious adoption of the judgment of the Full Court in the case last mentioned. We therefore propose the following form of words:

(1) Subject to this Act, in any action for defamation, whether oral or otherwise, the truth of the matters charged in such action or severable part of such action shall not amount to a defence to such action, or to such severable part of such action, unless the said matters were of public interest.

176. We have drafted the above subsection "subject to this Act" This is because McIsaacs v. Robertson (Supra para. 174) demonstrates that publication for the public benefit cannot be established if only a few persons would benefit by the publication, even if the publication has been limited to those few. Hence the present law does involve that the defence of justification is not available in some circumstances where the matter is true and the defendant had good reason for publishing it in the way he did. Consequently the present section goes beyond its expressed purpose to prevent unnecessary denigration of character. It may be argued that this is unimportant because, although the defendant may not be able to plead justification, some category of privileged occasion will be found to cover the circumstances. However, where the privilege is only qualified, it can be defeated by a showing of malice. In view of the extent to which the question whether there has been an improper motive rests on opinion, and in view of the disturbing examples suggesting that that opinion may become inflamed (Supra esp. paras. 29, 102), we do not is at present advised consider that where proper reasons exist for making true statements the defendant should be subjected to the hazards associated with giving the plaintiff the opportunity of showing that the defendant did not make it for those reasons but for other improper reasons. If truth should be made a sufficient defence irrespective of motive the expressed reasons for limiting the operation of the defence of truth would be preserved, prospective defendants would not have their mouths closed against stating the truth with good reason because of e.g., possible accusations of bias, and the law in New South Wales would still offer more protection to prospective plaintiffs against truthful attacks on character than it does in England or Victoria. The alteration to the law which we are disposed to recommend in this respect can most conveniently be suggested in the section on qualified privilege (Infra. para. 192) and we merely foreshadow it here.

177. We have referred (Supra para. 23) to representations that the stringency of the requirement that truth should be proved in every detail ought to be relaxed. The provision in s. 5 of the United Kingdom Act of 1952 following the acceptance of this criticism of the common law by Lord Porter's committee (See supra para. 23) is as follows:

In an action for libel or slander in respect of words containing two or more distinct charges against the plaintiff, a defence of justifica-tion shall not fail by reason only that the truth of every charge is net proved if the words not proved to be true do not materially injure the plaintiff's reputation having regard to the truth of the remaining charges.

The Tasmanian drafting variant which constitutes the Defamation Act, 1957, s. 18, and the adoption of which in this State has been urged (Supra para. 23), reads:

In an action for defamation in respect of words containing two or more distinct charges against the plaintiff, a defence of justification does not fail by reason only that the truth of every charge is not proved if the words not proved to be true do not materially injure the plaintiff's reputation, having regard to the truth of the remaining charges.

The clause (Clause 4(1)) in the Freedom of Publication Protection Bill, introduced in the United Kingdom Parliament in 1966 to deal with the observations of Lord Shawcross' committee on the ineffectiveness of the present English s. 5 in certain circumstances (those demonstrated in Plato Films v. Speidel where the plaintiff picked out parts of the defamatory matter only on which to sue, leaving the defendant no opportunity to prove the truth of the rest (See supra para. 23)), is as follows:

For section 5 of the Defamation Act 1952 there shall be substituted the following section -

"5. In an action for libel in respect of words in a publication containing two or more distinct charges against the plaintiff, a defence of justification may seek to justify all or any of the charges contained in the publication, whether or not they are contained in the words complained of in the action, and the defence of justification shall not fail by reason only that the truth of all or any of the charges contained in the words complained of is not proved, if the charges not proved to be true do not materially injure the plaintiff's reputation having regard to the truth of all or any of the remaining charges."

178. We tentatively consider that any one of the provisions discussed in the last paragraph would effect an improvement in the law, and since the last-mentioned provision covers the most ground except for its exclusion of slander - perhaps it was thought impossible to determine what were the limits of the one publication in the case of slander among the three provisions this would be the appropriate choice for legislative adoption in this State. It may, however, be subject to possible criticism not only because it appears to give less protection to persons sued for slander than the existing law in England, but because the extension of protection which it gives in cases of libel goes just as far as necessary to cover cases like Plato Films v. Speidel ((1961) A.C. 1090), where the defamatory matter was in one publication and the plaintiff selected part of it on which to sue, but not as far as necessary to deal with cases where the plaintiff might find and sue upon one publication in a series in which the charges were false, though this one false part might be a quite unimportant part of some major series of charges being brought. Again it may be that the plaintiff has picked out for action some minor mistaken statement by one person in relation to a major attack on the plaintiff's reputation by others. The question in relation to all this is really whether Lord Shawcross' committee has gone as far as it is possible to go in protection of a person against being held to ransom by a rogue for making trivial mistakes about him, without at the same time throwing open the court to general blackening of the plaintiff's character by the defendant by referring to some or all the charges that have ever been made about him and trying to prove them. If it is accepted that the provision goes to the limits of possible protection it means that the defendant's proper recourse outside the limited class of case covered by the clause is to endeavour to have the damages reduced by showing that the plaintiff had no reputation to lose.

179. In view of the conflicting considerations referred to in the last paragraph we incline to recommend the adoption of the clause in the Freedom of Publication Protection Bill with minor extensions designed to protect the position of the defendant in a slander action to a similar extent to which the defendant in a libel suit is protected under the Bill and to ensure that what is a single "publication" is looked at from the point of view of substance rather than form. We tentatively propose the following form of words:

(2) In an action for defamation oral or otherwise in respect of words in a publication, or in a substantially contemporaneous group of publications made on substantially the same subject matter to substantially the same audience, for which the defendant is responsible, containing two or more distinct charges against the plaintiff, a defence of justification, in the sense of a showing that matter was true and of public interest, may seek to justify all or any of the charges contained in the publication or group of publications, whether or not they are contained in the words complained of in the action, and the defence of justification shall not fail by reason only that the truth of all or any of the charges contained in the words complained of is not proved, if the charges not proved to be true do not materially injure the plaintiff's reputation having regard to the truth of all or any of the remaining charges.

180. The difficulties of a defendant in making out a defence of justification are increased because of the wide extent of what is regarded as within the "meaning" of defamatory words. It appears possible for a person to make a true statement in terms in which his meaning in the ordinary sense of that word cannot be misunderstood, and yet be unable to prove justification because the facts to which he refers, though they are true, may reasonably give rise in the reader's or hearer's mind to a defamatory inference which is false. In such circumstances it seems the defendant is liable because he cannot show the truth of the defamatory "innuendo". In Lewis v. Daily Telegraph Ltd. ((1964) A.C. 234) the defendants had stated that the fraud squad was investigating the plaintiff's company and pleaded justification to the action for defamation in respect thereof. Ultimately it was determined that the defendants did not have to justify the innuendo that the plaintiff was guilty of fraud which was not capable of being drawn, but did have to justify the innuendo that the plaintiff was suspected of fraud by the police if a properly instructed jury drew it - all apparently despite the fact that there might be no question in the jury's mind that the defendant had proved the truth of precisely what he meant to say - that the fraud squad was investigating - and what he was understood to mean. One cannot, it seems, call people's attention to actual facts, even if they are of public interest, if they would give rise to misleading inferences among persons not unduly suspicious. Lord Reid said that what the ordinary man would infer without special knowledge has generally been called the natural and ordinary meaning of the words. But, he added, the expression is rather misleading in that it conceals the fact that there are two elements in it. Sometimes, he said, it is not necessary to go beyond the words themselves, as where the plaintiff has been called a thief or a murderer. But more often the sting is not so much, Lord Reid continued, in the words themselves as in what the ordinary man will infer from them, and that is also regarded as part of their natural and ordinary meaning. Applying this to the facts of the case, he concluded that "the sting is in inferences drawn from the fact that it is the fraud squad which is making the inquiry" (Id. at 258).

181. We believe that in New South Wales, where truth is a defence only if, as at present, the publication is for public benefit (or, if our recommendations are accepted, where the matter is one of public interest), it is possible to make statutory provision to avoid unfairness to the defendant arising out of the circumstances above described. It can be argued that it is unfair to the plaintiff that the defendant should call attention even to true facts, where he had no good reason for doing so, if the effect would be to give rise to misleading inferences in people's minds. But where truth is a defence only if the defendant had good reason to publish because the matter was one of public interest in the sense of public concern, it does not seem to be reasonable that the defendant should be prevented from stating the truth because of the likelihood of misleading inference. We therefore incline to propose legislation in the following form of words:

(3) In an action for defamation a defence of justification in the sense of the last preceding subsection shall not fail, where the words in the sense in which they would reasonably be understood are true, merely because a defamatory inference not shown to be true might be drawn from the true state of affairs to which the words refer, whether reasonably or not.

182. In addition to the provision mentioned above (In para. 177 supra) the Freedom of Publication Protection Bill contains a subclause designed to remedy defects in the law of defamation as it applies to references to convictions:

4.(2) In an action for libel in respect of words containing a charge of the commission of a criminal offence, a defence of justification of the charge shall succeed if it be proved that at the time of the publication of the words the plaintiff had been convicted of the offence and the conviction had not been set aside.

In this respect the Bill appears to go further than the report of Lord Shawcross' committee whose deliberations generally constituted the origin of the provisions in the Bill, but the argument for some such provision as this is strongly urged by Professor Heuston in his article in the Irish Jurist (Irish Jurist, 1966 "Recent Developments in the Law of Defamation" 247 at 251-253). He points out that in 1932 a good common law judge, Lord Justice Greer., thought it would be an extraordinary result that if you said that a properly constituted tribunal had found a man guilty of some wrongful act you could be sued for libel unless you could prove that the properly constituted tribunal had rightly decided that he was guilty. Yet this in Professor Heuston's view is the present position. However, the cases he cites do not seem to go to this extent. In Hinds v. Sparkes (The Times, July 30, 1964) the defendant was charged with having said the plaintiff was rightly convicted, which is certainly more than saying that he had been convicted by a properly constituted tribunal. If this was a comment on the fact of the conviction, as Professor Heuston seems to suggest it was, we believe that we have taken the necessary steps to protect it by providing that an inference of truth is one kind of permissible comment on the subject matter of privileged reports, what happens in court being one kind of such subject matter (See supra para. 159). If on the other hand the defendant has taken it on himself to assert the rightness of the conviction as a matter of fact, it seems unfair not to allow the plaintiff to vindicate his reputation against the independent attack. Professor Heuston also refers to Goody v. Odhams Press Ltd. ((1966) 3 W.L.R. 460, (1967) 1 Q.B. 333). In this case the defendant described the plaintiff's alleged part in the crime for which he had been convicted. It was held that the conviction was not admissible (on the principle of Hollington v. Hewthorn (1943) 1 K.B. 587, which treated it as mere opinion evidence) on the question of guilt though it was in mitigation of damages. While this does not seem to support Professor Heuston’s position that reference to the fact of conviction cannot be justified by proof of Conviction, it is notable that all three members of the Court of Appeal in this case severely criticised the application of the rule in Hollington v. Hewthorn to these circumstances, and Lord Justice Salmond added "It is to be hoped, now that law reform is in the air, it may perhaps be reconsidered ((1966) 3 W.L.R. at 465). But, as for Professor Heuston's point, if it is correct, as may well be the case, it appears to be not the result of the major points discussed in these two cases, but of the rule that you cannot state something to be true, even if it is true, if the state of affairs referred to might lead to defamatory inferences being drawn not shown to be true. Certainly a reasonable man might infer from a statement that a man was convicted that the man was guilty. This again, if it lies behind the difficulties in the present matter, we believe we have dealt with (Supra para. 159). We consider, however, that unless a convicted person has real reason to attack the conviction in actions for defamation, he should not be permitted to recover damages at the expense of a person who has unguardedly made an assertion of fact that he was rightly convicted. We therefore incline to recommend the following form of legislation to give effect to the views of Lord Denning, Lord Justice Danckwerts, and Lord Justice Salmond on the application of Hollington v. Hewthorn:

(4) For the purposes of a defence of justification in the sense of subsection (2) evidence of a conviction for a crime shall be admissible to show that the person convicted committed the crime.

For recent English developments see paragraph 303 below.

183. Since the question of what is a matter of public interest as it arises in connection with the defence of fair comment at common law is a question for the judge, it is possibly unnecessary to provide that, as it arises under our recommendations in relation to the defence of justification, it should also be for the judge. Since, however, the question of public benefit in relation to justification was before 1958 a question for the jury (and probably also since 1958) we incline to recommend the following subsection ex majori cautela:

(5) The question of whether matter is of public interest within the meaning of this section is a question of law.

184. It is felt that the existing rules in relation to the defence of justification should be continued with the appropriate modifications to meet the changed terms of the defence. Thus we incline to recommend that the proposed Second Schedule to the Act of 1969 should contain the following rules:

A plea to an action for defamation that matter was true and of public interest shall be specially pleaded.

A judge may at any stage of an action for defamation order that the defendant shall under any plea that matter was true and of public interest give particulars of facts and matters relied on to establish (1) that the matter was of public interest and (2) the truth of the words complained of.