Paragraphs 185 to 237

QUALIFIED PRIVILEGE (SECTION 17)

185. By s. 17 it is made a lawful excuse for the publication of defamatory matter that the publication is made in good faith in eight specified sets of circumstances. Good faith is defined as involving that the matter published is relevant to the matters the existence of which may excuse the publication in good faith of defamatory matter, that the manner and extent of the publication do not exceed what is reasonably sufficient for the occasion, and that the person by whom it is made is not actuated by ill-will to the person defamed, or by any other improper motive, and does not believe the defamatory matter to be untrue. Generally, this was no part of New South Wales statutory law before 1958, which left the matter of the circumstances in which matter other than reports was protected on the ground of qualified privilege almost entirely to the common law (the exception being protection of certain matter supplied under contract (s. 30 of the Act of 1912)). The section introduced in New South Wales in 1958 is identical in substance with the Queensland Defamation Law of 1889, s. 16 except for two changes. Firstly, in s. 17(1)(d) it is specified that the privilege of answering inquiries applies to inquiries "pursuant to contract or otherwise", a version apparently having no precise progenitor. Secondly, in s. 17(1)(h), dealing with publications in the course of, or for the purposes of the discussion of some subject of public interest, the public discussion of which is for the public benefit, the New South Wales section adopts a restriction on the protection afforded by the section which was imposed by the Queensland Criminal Code of 1899 (s. 377(8)), namely, that so far as the defamatory matter consists of comment it must be fair.

186. In introducing the provision in Queensland in 1889 Sir Samuel Griffith explained the origin of the various parts of the section thus:

(1) the provision regarding censures published by a person having authority over another (s. 17(1)(a) of the New South Wales Act) was taken from the Indian Penal Code (where it is s. 499, seventh exception); (2) the provision relating to publications in efforts to obtain redress of grievance from one in authority over another (s. 17(1)(b) in the New South Wales Act) was said to be "clearly the present law"; (3) the same comment was made on the provision (New South Wales Act s. 17(1)(c)) relating to publications in protection of an interest or for the public good (in fact this also comes from the Indian Penal Code s. 499, ninth exception); (4) the provision regarding publications in answer to inquiries (partially corresponding to New South Wales Act, s. 17(1)(d)) he considered was the present law. (5) So, in his view, was the provision for publication of information to persons having an interest in knowing the truth (New South Wales Act, s. 17(1)(e)); (6) the provision for protection of publications made on the invitation or challenge of the person defamed (New South Wales Act, s. 17(1)(f)) was either the law "or certainly ought to be"; (7) the protection of refutations of defamatory matter (New South Wales Act, s. 17(1)(g)) might be a doubtful rendering of the existing law but was common sense; (8) the provision for protection of discussion of subjects of public interest, the public discussion of which was for the public benefit (New South Wales Act, s. 17(1)(h)) he had never seen formulated in that form, but if it was not the law as he thought it was, it ought to be. The definition of good faith was in Sir Samuel's view also the law though there might be points about it that were doubtful (57 Queensland Parliamentary Debates (1889) 737-738). It will be seen therefore that in sum Sir Samuel attempted to state the common law and that repeal of the section should therefore make no difference to the results of cases. We consider that owing to confusion which has been caused and promises to continue, the repeal of the section is desirable, even apart from the arguments we have already made concerning the undesirability of any attempt to codify common law privileges (Supra paras. 66-70). But at the same time it must be observed that Sir Samuel's view of the relationship between his legislation and the common law is rather contrary to the prevailing judicial view, and attention therefore has to be given both to the question whether substantive law of value is being sacrificed when a particular part of the section is repealed, as well as to the question whether the common law needs improvement by other means than any comprehended within the section now existing.

187. There can be no doubt that if the object of this section was to clarify the law and reduce litigation, the evidence thus far is that it has signally failed in this respect because it is in this area that the most intractable problems have been raised for the courts in the past few years and in which, apart from the matter of the defamation of the dead, the most numerous representations for change have been made to the Commission and the sharpest judicial criticisms have been made (See supra paras. 25 to 34). in our tentative opinion some of these sources of dissatisfaction spring from the difficulty of drawing the line legislatively between matters which go to the existence of a privileged occasion and matters which go to its abuse and the failure of the present legisla-tion to solve the problem. This is a matter of some importance because with the differentiation in an individual case is implicated the respective functions of judge and jury and therefore the manner in which the judge directs the jury as to its task. At common law the ultimate question whether an occasion is privileged is for the judge while good faith is for the jury but the Act says nothing about the matter except to declare that whether the public discussion of any subject is or is not of public benefit (which arises under s. 17(1)(h)) is a question of fact as is also the question whether any defamatory matter is or is not relevant to any other matter (s. 19) . As recently as 1965 Mr. Justice Walsh expressed the opinion that the framework of the Act was such as to suggest that the "subordinate" and "ultimate" questions concerning the privilege attaching to an occasion under s. 17 were both for the jury (Address for the Council for Advanced Legal Studies of the New South Wales Bar Association "The Defamation Act, 1958 and the Common Law" p. 10). But it now appears to be settled that the general question whether an occasion is one of privilege under the section is for the judge. In Bridges v. Australian Consolidated Press Ltd. ((1967) 86 W.N. (Pt. 2) 392) (C. of A.) Mr. Justice Jacobs expressed the view that "the question whether a defence has been made out under s. 17 is a question of law to be determined by the judge upon all the facts which have been disclosed in the evidence in the case" (Id. at 404), a view which had been taken by Mr. Justice Evatt concerning the Queensland model in Telegraph Newspaper Co. v. Bedford ((1934) 50 C.L.R. 632 at 658) in relation to the matter of determination of the "public good" (under the provision corresponding to the New South Wales s. 17(1)(c)). In Justin v. Associated Newspapers Ltd. ((1966) 86 W.N. (Pt. 1) 17) it was held by the Court of Appeal that the questions raised by the paragraphs of s. 17(1) (except where the Act provides otherwise) are for the judge, subject to the jury's resolution of any disputed facts relating to the circumstances surrounding the defamatory publication (See per Wallace, P. at 20 (and to the same effect Wallace, P. in Clines v. Australian Consolidated Press Ltd. (1966) 84 W.N. (Pt. 2) 86 at 97) and Walsh, J.A. at 34), pointing out that whatever doubts might arise if the point were free from authority it appeared to be settled by Bedford's Case. Mr. Justice Jacobs added the qualification that in addition to the questions which are made jury questions by the Act, fairness of comment under s. 17(h) is a matter for the jury.)

188. With this much settled it might have been possible had the section been differently framed to separate out for the judge the question whether the occasion was one which the law regarded as appropriate for the protection of the kind of statement the defendant made, if for proper purposes, and to leave to the jury the question whether the purposes the defendant had were proper in the circumstances. This is the line of division between the functions of the judge and jury at common law. Unfortunately, however, certain features of the drafting of the section stand in the way of a division along these lines being drawn, as indicated in the succeeding paragraphs.

189. A number of the paragraphs of s. 17 are so drawn as to suggest that the defendant's object in publishing the defamatory matter goes to the existence of the privileged occasion and to this extent the consideration of the defendant's object, on the courts' rulings as to the scope of the judge's functions, has to be a matter for the judge. For example, under s. 17(b) it is lawful excuse for the publication of defamatory matter if certain statements are made for the purpose of seeking remedy or redress. Under s. 17(c) publication of such matter is excused if for the protection of certain interests or for the public good. Under s. 17(e) publication of such matter is excused in certain circumstances if it is for the purpose of giving information. Under s. 17(g) certain publications are excused if in order to answer certain kinds of defamatory matter. Under s. 17(h) certain publications are excused if in the course of or for the purposes of, certain discussions. To some extent the questions here arising will be "subordinate" questions in which the judge would appropriately seek the assistance of the jury despite the fact that they go to the existence of a privileged occasion. But others are questions of interpretation and evaluation - particularly under s. 17(c) - the determination of which is allocated to the judge. Hence the existence of these expressions in the definitions of the occasions, coupled with the fact that the question of the defendant's motives is part of the question of good faith, has compelled the judicial formulation of a difficult distinction between purpose - going to the existence of the occasion and a matter for the judge - and motive - going to the question of good faith and a matter for the jury. In Justin v. Associated Newspapers Ltd. ((1966) 86 W.N. (Pt. 1) 17) the President of the Court of Appeal observes that although at common law the test applied in determining whether an occasion was privileged was primarily an objective one, it seems difficult to reject the necessity for both a subjective and objective test in some of the paragraphs of s. 17 (Id. at 20). His Honour went on to say that, at the trial of the action, purpose (the subjective factor) had been confused at times with motive (Id. at 21) but in his opinion it would be possible for a defendant to establish a purpose which would assist him in obtaining a ruling that the occasion was one of qualified privilege and yet be found by the jury to have been actuated by an improper motive which established lack of good faith (Id. at 22). In Donato v. Legion Cabs (Trading) Co-operative Society Ltd. ((1966) 85 W.N. (Pt. 1) 242) the learned President had previously referred to the same matter in similar terms so as to draw the inference that a publication made accidentally or in error by a ministerial servant of a corporation could not be a publication for the protection of an interest (Id. at 251 and see per Jacobs, J.A. in Bridges v. Australian Consolidated Press Ltd. (1967) 86 W.N. (Pt. 2) 392 at 404). It appears to us that the paragraphs of s. 17 which raise the present problem exemplify the fact that the draftsman of s. 17 has drawn the line between the judge and jury functions in the wrong place in a number of respects. The general common law distinction between the question whether publication is lawful if for a proper purpose (for the judge) and the question whether the defendant's purpose (including motive) was proper (for the jury) seems much easier to apply than the statutory one, as judicially interpreted, between the purpose and motive of the publication. The latter distinction, since it apparently must depend on a distinction between immediate and remote objectives, must always be a matter of degree and can only be entirely clarified for particular circumstances by litigation. For this reason we are considering recommending repeal of the paragraphs involving it and the refraining of the one among them (s. 17(d), see infra para. 197) which contains matter the retention of the substance of which is necessary to avoid a difficulty arising at common law. The same considerations are among those suggesting to us that the definition of the requirement of good faith should also be repealed and this matter left to the common law.

190. We have referred (Supra para. 28) to the uncertainty created by the fact that the draftsman has made one of the elements of good faith the requirement that the manner and extent of the publication do not exceed what is reasonably sufficient for the occasion. In respect of this matter, as in respect of the matter discussed in the last paragraph, questions arise as to whether excess is solely a matter of good faith and so for jury alone, or whether there are matters in this area for both judge and jury, and if so whether they are the same or different aspects of the matter. The first possibility is by now clearly excluded by the decisions. At common law, as Mr. Justice Walsh points out in Justin v. Associated Newspapers Ltd. ((1966) 86 W.N. (Pt. 1) 17 at 33) the question of the area over which a publication was made might be matter for consideration in determining whether the occasion was Privileged, before the question of malice was reached (and see, for example, Guise v. Kouvelis (1947) 74 C.L.R. 102). In Telegraph Newspaper Co. v. Bedford ((1934) 50 C.L.R. 632) the extent of publication was treated by Mr. justice Evatt as a key question in a case arising under Queensland legislation corresponding to s. 17(c) going to the existence of the privilege and for the judge (Id. at 658). This provided the Court of Appeal in Bridges v. Australian Consolidated Press Ltd. ((1967) 86 W.N. (Pt. 2) 392) with precedent for the holding that the extent of publication is a relevant consideration for the judge when deciding whether the defence of "public good" has been made out and that the trial judge is not required when considering this question, to assume in favour of the defendant all the elements of publication in good faith. In view of these holdings it appears that the situation of a defendant is more difficult than at common law since he will have to convince both judge and jury that there is no excess of publication. This was perhaps not intended and seems to have resulted from turning the matter of excess of publication from possible evidence on the question of good faith (as it was in this aspect at common law) to a matter related to the substantive definition of good faith (as it becomes under the statute). Speaking of the manner of publication, Mr. Hughes has pointed out that at common law it was clear that the judge should not leave it for the consideration of the jury unless he ruled that it provided evidence of malice (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" pp. 12-13). He concludes that "the requirement that the extent of the publication must not exceed what is reasonably sufficient for the occasion is another instance of confusion between the limits of privilege and what should be the separate question of whether a subsisting privilege is defeated by want of good faith". We agree with this conclusion and consider that it provides a further reason for eliminating the statutory definition of good faith.

191. Similar problems are raised by the requirement in the definition of good faith that the matter published must be relevant to the matters the existence of which may excuse the publication in good faith of defamatory matter. In this instance account has to be taken of s. 19 which provides that whether any defamatory matter is or is not relevant to any other matter is a question of fact. Despite the inference which might be drawn from this latter provision that this matter is exclusively for the jury, the courts appear nevertheless to have avoided the unworkable situation which it seems would exist if a sharp separation had to be made between the occasion and the publication so as to leave the question of whether the latter was relevant to the former entirely to the jury. In Justin v. Associated Newspapers Ltd. ((1966) 86 W.N. (Pt. 1) 17) the President of the Court of Appeal laid down that the reference in s. 19 was restricted to the definition of good faith and did not seem to be intended to extend at any rate to some questions of relevance arising under paragraph (c) of s. 17 (Id. at 22). In the same case Mr. Justice Walsh points out that at common law the question whether the matter published is relevant to the duty or interest, or is foreign and irrelevant to it, may be matters for consideration in determining whether the occasion is privileged (Id. at 33). In the Act he felt that a difficulty was created by the reference to relevance in the provision defining good faith, coupled with the decisions which showed that "relevance" can play a part in determining the prior question of privilege. "But," he added, "it may be pointed out that the decisions do recognize that 'relevance' may have a bearing also on the question of malice." “The introduction of ‘extraneous matter’”, he continued, “may have a double effect, the first being that the publication of the extraneous matter is not privileged at all, and the second being that it may afford evidence of malice which takes away the protection in relation to the simultaneous communication of other matter to which privilege would otherwise attach." (Id. at 36). As his Honour points out, however, at common law the irrelevant material only might provide evidence of malice inspiring other material than that which is irrelevant. But we may observe that if the statute so operates that any irrelevant material automatically establishes bad faith so as to destroy the privilege attaching to relevant material accompanying it, the effect is much more drastic. The possibility that this might be the effect of the section had earlier been envisaged and deplored by Mr. Hughes (See para. 27 supra) who considered that this might even be the effect of irrelevant material which could be defended on some independent ground (T.E.F. Hughes, Q.C., article cited above, pp. 10-11). If the reference to relevance, which he regards as in any case unnecessary for proper purposes since it must arise earlier than the question of good faith, is not left out, Mr. Hughes would suggest adding words to the last paragraph of s. 17 to make it clear that defamatory matter need not be relevant if it is protected independently of the section. Our own disposition is, however, at present simply to omit it along with the rest of what would be omitted by omitting the definition of good faith altogether.

192. In view of the criticisms of the concept of good faith to which we have referred above (Para. 30) we have considered whether it would be possible to amend the common law definition so that the protection might, in words of the United States Supreme Court justices, be less "evanescent". The fact that the law came to depend so heavily on such a fluid concept is unfortunate in that it was to a large extent accidental, the creation of qualified privileges dependent on the absence of malice having occurred (See supra para. 60) because of the judicial convenience of developing the law by interpretation of a word which happened to be common form in declarations, although until this development of minimal significance. Nevertheless we cannot ignore the fact that two hundred years have gone by since this process began and that a great deal of learning and experience is invested in the law of privilege of which this conception is an integral part. At present we think that our recommendation should be that the defendant speaking words on an occasion of privilege be restored to the position which he substantively occupied before 11 Vict. No. 13 (Supra para. 62). Before that time such a defendant might always plead truth - for it was a general defence - and/or plead not guilty, rely on the existence of a privileged occasion and leave the plaintiff to prove him guilty of malice. Following the passage of the Act he could less often plead the new and substituted defence of truth and public benefit in circumstances of qualified privilege, for although the words might have in fact been spoken only to proper persons in proper circumstances the defence was available only if the general public would have benefited by being made aware of the matter published. We have already discussed the apparent unfairness of the operation of this section (By reference to McIsaacs v. Robertson in para. 174 supra and in para. 176). We suggest the following provision:

(1) In any action for defamation whether oral or otherwise it shall be a defence in respect of the matters charged in such action or any severable part of such action that the said matters were published on an occasion of qualified privilege whether existing at common law or created by statute and that the said matters were true and the provisions of subsections (2), (3) and (4) of s. [the section relating to the defence of justification] of this Act shall apply as if the defence was a defence of justification.

193. We have already given our reasons for suggesting that as a general policy it is undesirable to spell out particular occasions of qualified privilege by statute unless it is desirable in a particular case to go beyond the protection clearly provided by the common law (Supra paras. 66 to 70) and we now proceed to examine what this would involve for the individual paragraphs of the existing section. Paragraph (a) relating to censures by a person in authority over the plaintiff appears to have attracted no recent litigious attention but nevertheless appears to be capable of giving rise to uncertainty and possible injustice. According to the Indian model the application of the provision is illustrated by "a judge censuring in good faith the conduct of a witness, or of an officer of the Court; a head of department censuring in good faith those who are under his orders; a parent censuring in good faith a child in the presence of other children; a schoolmaster, whose authority is de-rived from a parent, censuring in good faith a pupil in the presence of other pupils; a master censuring a servant in good faith for remissness in service; a banker censuring in good faith the cashier of his bank for the conduct of such cashier as such cashier" (Indian Penal Code, 1860 s. 499, seventh exception illustrations. The paragraph itself contains no suggestion of limitation of the audience to which the censure may be published either in the Defamation Act, 1958 or in the Indian Penal Code but some of the Indian Penal Code illustrations quoted suggest that sometimes the publication must be to a limited audience. If the limitation which would exist at common law of a reciprocity of interest and/or duty between the person making the statement and the recipient is not to be implied in the existence of the privileged occasion as the paragraph specifies it, it might be argued that the paragraph offers more liberal protection than the common law. It might also, however, be argued that a paragraph which gave a licence for wholesale broadcasting of censure by persons in authority was grossly unjust. And in any case the jury would have to be instructed that good faith was lacking, as the present law stands, if the extent of publication exceeded what was reasonably necessary for the occasion, so that the extent of permissible publication would, unless the paragraph impliedly gives the judge control over it, vary with the views of propriety of the individual jury. The provision is moreover subject to the objection that there are cases which present most of the features it specifies but do not fall within it, so that questions could be raised as to whether they were meant to be excluded from protection as relating to a matter "dealt with" by the provision within the meaning of s. 3(2) of the Act of 1958. A common case of this kind is a censure passed by a master, for example to other servants, in respect of the conduct of a servant leading to his dismissal, but made when the dismissal has taken place so that the authority has ceased with the service (Somerville v. Hawkins (1850) 10 C.B. 353). Codification along the lines at present attempted seems inevitably associated with the exclusion from the operation of paragraphs defining defences of matter which should be associated with the matters covered because it depends upon similar considerations. For these reasons we would propose to recommend that the present paragraph be repealed and no substitution made for it. For although we cannot be certain that it goes no further than the common law, we would consider that in the respects it may do so the common law is more just in operation.

194. Section 17(b) accords qualified privilege to publications "for the purpose of seeking remedy or redress for some private or public wrong or grievance from a person who has, or whom the person making the publication believes, on reasonable grounds, to have, authority over the person defamed with respect to the subject matter of the wrong or grievance". This is one of the paragraphs specified by the President of the Court of Appeal in Justin v. Associated Newspapers Ltd. as containing a subjective element (See supra para. 189) and for this reason should in our opinion as at present advised be at least amended for the reasons given above, principally to enable the question for the judge of the existence of the occasion to be effectively separated from the question for the jury of good faith. Whether, however, the provision should be preserved in any form at all depends in our view on whether it contains any element of value lacking in the common law (with which in Sir Samuel Griffith's view it was "clearly" identical in 1889, supra para. 186). It is more broadly framed than the Indian Code model in the respect that the privilege covers publications not only to those having authority over the person defamed with respect to the subject matter but also to those believed on reasonable grounds to have such authority. In this respect the paragraph is similar to s. 17(e) which extends the privilege of giving information to persons having such an interest in knowing the truth as to make the publication reasonable to cover also the giving of information to persons believed on reasonable grounds to have such an interest. In Clines v. Consolidated Press Ltd. ((1966) 84 W.N. (Pt. 2) 86) the President of the Court of Appeal said of the extension of privilege in the latter provision that it is "of course, new" (Id. at 90). This suggests, since similar considerations lie behind the two classes of privilege at common law, that the former provision, contrary to Sir Samuel Griffith's intention, likewise goes beyond the common law. The learned President speaks here in reliance on Hebditch v. McIlwaine ((1894) 2 Q.B. 54) which is referred to by the Full Court for the same proposition in Orr v. Isles ((1966) 83 W.N. (Pt. 1) 303). In fact Hebditch v. McIlwaine, although the principles stated in it by the Court of Appeal are in the general terms appropriate to the subject matter of s. 17(e), seems to constitute an example within s. 17(b). The plaintiff had been elected to the office of guardian of the poor for a certain parish. The defendant ratepayers complained to the board of guardians that the agents of the plaintiff had secured his election by "treating" voters and other improper expedients. The jury specially found that the defendants honestly and reasonably believed that the board of guardians was the proper authority to whom to apply. The Court held that the existence of such a belief could not create an occasion of privilege in view of the fact that the board of guardians was not actually the proper authority to deal with the matter. In addition to his major entry on the case under the more general principle (Gatley on Libel and Slander, (6 ed. 1967) 236) Gatley cites it under the heading "Statements Made to Obtain Redress" for the proposition that "no privilege will attach if such complaint or information be addressed to a person who has no jurisdiction or control either directly or indirectly over the person whose conduct is impugned, nor any power or authority to grant redress, or to inquire into, the abuse or grievance complained of" (Id. at 267). It is clear from the review of the authorities in Hebditch v. McIlwaine that Sir Samuel Griffith's account of the law in s. 17(b), as in s. 17(e), was a fair rendering of such authority as existed in 1889, and that the view taken by the English Court of Appeal was more restrictive of the scope of privilege than the general view until that time. With great respect to the distinguished English Court of Appeal which decided the case, we are disposed to think that attention was focused too sharply on the proposition that belief could not create a privileged occasion rather than on the proposition that the circumstances making it reasonable for the defendant to think it right for him to make the publication to the person he did might create the occasion. It would seem to us that a prospective defendant should be able to order his conduct in determining whether he has a privilege to speak on the basis of the circumstances as they reasonably appear to him. If he is held liable when a reasonable man in his position would have considered it his right or duty to speak the utilisation of occasions of privilege will be discouraged and hence there will be diminished protection for the interests in which the law creates the privilege. What seems to be required here is not, however, a reframing of s. 17(b) to preserve its present advantages without its present defects, but a general provision, covering the circumstances the subject matter of s. 17(b) as well as s. 17(d) and s. 17(e), if that should indeed be necessary but dealing only with this particular aspect. We therefore suggest the following form of words:

(2) Where a publication the subject of any action for defamation would be the subject of qualified privilege common law or statutory if the recipient of the communication bore the character in relation to the circumstances which the publisher reasonably supposed him to bear the privilege shall be held to exist even though the recipient lacked that character.

195. By s. 17(c) qualified privilege is accorded to publications “for the protection of the interests of the person making the publication, or of some other person, or for the public good". We have referred (Supra para. 186) to the origin of this provision in the Indian Penal Code 1860, to the part played by the notion of the public good in adding to the proliferation of conceptions such as public interest, public benefit, public concern, public good in the defamation law of New South Wales (Supra para. 174), and to the manner in which the framing of this paragraph, like others, has had the effect of forcing the drawing of a difficult distinction between the subjective purpose of a publication and the motive with which the publication was made (Supra para. 189). To these criticisms can be added the suggestion that as it is interpreted by the High Court the paragraph duplicates the function which in the New South Wales legislation is one of those performed by s. 3(2) (Supra para. 77) which we have recommended should be preserved in a broader form (Supra para. 78). By s. 3(2) qualified privileges existing at common law and not dealt with by the Act are preserved. Similarly, in Telegraph Newspaper Co. v. Bedford ((1934) 50 C.L.R. 632) Mr. Justice Evatt said that "it is reasonably plain that, by the insertion of the words ‘for the public good’ in sec. 377(3) of the Criminal Code (Queensland) [corresponding to s. 17(c) of the Defamation Act, 1958 (N.S.W.)] the Legislature intended to make available, in circumstances for which no specific rule was laid down, the main consideration and the general principles by which Courts of common law had been guided in determining whether or not to accede to a new claim of privilege" (Id. at 657-58). Not only would this function of the provision appear to be unnecessary in New South Wales, but its exact effect in this direction is to some extent thrown into doubt by the observation that the language of the paragraph is not apt for the purpose which Mr. Justice Evatt has declared it has. In an address Mr. Justice Walsh pointed out that the common law cases do not assert that it is for the welfare of society that the publications of the defamatory matter under discussion in those cases should be made. Rather, Mr. Justice Walsh said, they are asserting that it is for the welfare of society that the law should give a qualified protection (Address for the Council for Advanced Legal Studies of the New South Wales Bar Association "The Defamation Act, 1958 and the Common Law", p. 17). Nevertheless Mr. Justice Walsh has taken the view that the New South Wales Court of Appeal is bound by the authority of Telegraph Newspaper Co. v. Bedford (Supra) to hold "not only that the question whether the publication was for the public good was a question of law to be determined by the judge, but also that, in determining it, the approach to be made is closely similar to the approach which would be made at common law in determining whether the occasion was a privileged one". His Honour recalls that these propositions were affirmed by Mr. Justice Evatt with the concurrence of Mr. Justice Rich and Mr. Justice McTiernan, and also by Mr. Justice Starke in a separate judgment, in Bedford's Case, and were part of the ratio decidendi (Justin v. Associated Newspapers Ltd. (1966) 86 W.N. (Pt. 1) 17, 34). Bedford's Case, apart from its aspect in tying the statutory provision down to at least the general area of common law privilege, also underlines the possible restrictive effect of the words of the provision in apparently directing attention to the object and effect of the individual publication. Mr. Justice Evatt used language suggesting that the section makes the truth or otherwise of the particular publication a matter of relevance to the question whether it was for the public good, saying that the "precise" question in the case before the court was whether it was for the public good that the appellants should cause to be published to all the paper's readers the "admittedly false and admittedly defamatory" amputations (Telegraph Newspaper Co. Ltd. v. Bedford (1934) 50 C.L.R. 632, 658) In Bridges v. Australian Consolidated Press Ltd. ((1967) 86 W.N. (Pt. 2) 392) Mr. Justice Jacobs expressed the opinion that truth or falsity was not a critical or determining factor, but was not wholly irrelevant, the question being whether it was for the public good that the defamatory matter be published whether that defamatory matter be true or false (Id. at 404-5). In the same case, however, Mr. Justice Walsh observed that "it does not seem to be in conformity with the definition of good faith in s. 17 to say that the protection under s. 17 will be lost if the statements made are in fact untrue, even if the person making the publication does not believe them to be untrue" (Id. at 400). His Honour reserved the point by saying that "my concurrence in the decision that the appellant could not rely upon s. 17(c) does not depend in any way on the truth or falsity of the matter published" (Id. at 401). For further contrast in judicial views reference may be made to the judgment of the President of the Court of Appeal in Clines v. Australian Consolidated Press Ltd. ((1966) 84 W.N. (Pt. 2) 86) where the learned President, while conceding that falsity does not directly intrude into issues under s. 17, added: "I would say that I find it difficult to envisage a situation where the publication of false defamatory statements of fact could be for the public good" (Id. at 99). So long as attention is focused on the individual publication we would respectfully agree that the difficulty is insuperable and, despite Bedford's Case which, except in the matter of making truth relevant, directs attention to the type of situation, it is difficult to interpret the language of the provision as removing consideration of the object and effect in the individual case. (See Moffit, A.J.A. in the case cited at p. 111 and cf. Jacobs, J.A. in Justin v. Associated Newspapers Ltd. (1966) 86 W.N. (Pt. 1) 17, 53). In any case, the apparent tension between the approach of the Bedford Case with its concentration on the issue of the benefits of publication in the kind of situation (And see the same point stressed in the judgment of Evatt and McTiernan, JJ. in Musgrave v. The Commonwealth (1937) 57 C.L.R. 514, 552) and that of some members of the New South Wales Court of Appeal, with its concentration on issue of the benefits to the public of publication in the individual case, must have its effect in at least temporary uncertainty for litigants. Nor is it apparent what rewards for litigants would be involved in the victory of either point of view, the Bedford approach not clearly leading to anything more than the statutory rubber-stamping of occasions of qualified privilege at common law, and the concentration on the benefit in the individual situation not clearly leading beyond the protection of situations in which justification might be pleaded in any case (See the remarks on this aspect of Walsh, J.A. at p. 19 of his address to the Council for Advanced Legal Studies of the New South Wales Bar Association "The Defamation Act, 1958 and the Common Law”). In these circumstances we are disposed to think that the proper recommendation is for the provision to be repealed and that no attempt should be made to replace it with any provision in similar terms. We have referred above (Para. 30) to the complaints made to us of the ineffectiveness of the provision in practice. In the next paragraph we consider what advantages the provision had nevertheless offered hope of achieving and consider other means of preserving these.

196. Despite the difficulties referred to in the last paragraph judges have envisaged that the existence of s. 17(c) would lead to important extensions of the area of qualified privilege. In Clines v. Australian Consolidated Press Ltd. ((1966) 84 W.N. (Pt. 2) 86) the President of the Court of Appeal said that "once the conclusion is reached that the defence of 'for the public good' is available (under the code) to the press an important change from the general law must be acknowledged" (Id. at 99). In the same case Mr. Justice Jacobs spoke of "the wide protection apparently given by the section" and added: "clearly the section goes beyond the common law and the question really is - how far beyond the previous law does it go?" (Id. at 105). Mr. Justice Jacobs' statements occur in association with a comment that "a limitation by the introduction of some doctrine of reciprocity of interest could hardly be other than a reflection of one's own views on the desirability of curbing or limiting the wide protection apparently given by the section" (Id. at 104-5) and the learned President had also referred to the fact that the element of reciprocity does not appear expressly in the Act and that "interest in the recipient may not be regarded as a requirement under the code" (Id. at 91). It appears, then, that it is chiefly the lack of this requirement which is the feature of the provision expected to give broader protection than at common law. Yet we may ask in the present connection, as we did in connection with s. 17(a) (Supra para. 193) whether considerations of reciprocity of interest would not continue to arise under the head of the permissible extent of publication, expressly made a question for the jury as part of the definition of good faith and decided to be not thereby excluded from the consideration of the judge as a question going to whether or not the occasion is privileged (Supra para. 190). The failure of the defence now under consideration in Bridges v. Australian Consolidated Press Ltd. ((1967) 86 W.N. (Pt. 2) 392) could be regarded as depending on the lack of interest among the general community outside Warringah in the matter of the tactics used in the local by-election, so that the argument which might have been based on lack of reciprocity of duty and interest at common law and the considerations going to excess of publication destroying privilege under the statute appear to work in the same direction. This result appears to be unfortunate, for the danger of close insistence upon the requirement of reciprocity of duty and interest between publisher and audience has been stressed by the highest authorities. In Guise v. Kouvelis ((1947) 74 C.L.R. 102) Sir Owen Dixon complained that the reduction of matters of privilege to formulas of duty and interest had tended to the introduction of dialectical tests in a matter essentially of doctrine and, particularly in regard to publications in defence of an interest, he considered that the conception of a corresponding duty or interest in the recipient had to be very widely interpreted (Id. at 125). In Mowlds v. Fergusson ((1940) 64 C.L.R. 206) Sir Owen repeated his remarks (See at 214-15) and in the same case, Mr. Justice Williams expressed the interest of the recipient of the communication sufficing to create the reciprocity simply as being that he "was a member of the public who knew that the respondent's reputation had been publicly attacked and as such had an interest to read his reply" (Id. at 219). Despite Sir Owen's warnings and the breadth of the approach in Mowlds v. Fergusson the outcome in Bridges' Case suggests to us that the rules whether expressed in terms of excess of publication or a requirement of reciprocity of duty and interest may circumscribe publication more narrowly than is consistent with the interest of the public in the light of considerations which have been drawn to our attention. The Court in Bridges' Case stressed the publication of a local matter in a national newspaper. Yet in the representations made to us a theme of those representing papers with restricted areas of publication was the difficulty of dealing with topics involving criticism of individuals because of the inadequacy of the capital of the newspapers in face of the scale of damages which might result (Supra para. 9). We have noted the bankruptcy of one local newspaper proprietor (Supra para. 9) following upon a libel action. While consideration must be given to the extent to which relief might be given to the local newspapers, at the same time it seems inevitable that the national newspapers with their greater resources will need to take a share of the risks involved in raising highly controversial matters, even those with particular local interest. We also wonder whether in large urban communities, or even in country areas, the public have not been conditioned to expect that matters of this kind will be dealt with in national newspapers and to govern their reading habits accordingly. If this is so, it may mean that to discourage the national newspaper from publishing such material by a continuance of an approach born in a different publishing situation may diminish the effectiveness of dissemination of controversial matters of local importance. We therefore tentatively propose the following provision as a different approach to obtaining the benefits which had been hoped for from the present paragraph but which it threatens not to produce:

(3) In determining whether a publication the subject of any action for defamation is the subject of qualified privilege the area of publication shall not be regarded as excessive merely because of the extent of the circulation of the medium in which the publication was contained if the matter though only of local or special interest was published to a substantial number of persons in the locality concerned or having the special interest

197. Qualified privilege is accorded by s. 17(d) to publications "in answer to an inquiry made (pursuant to contract or otherwise) of the person making the publication relating to some subject as to which the person by whom or on whose behalf the inquiry is made has, or is believed, on reasonable grounds, by the person making the publication to have, an interest in knowing the truth" . We have already made our suggestions for the preservation of the advantages offered by that aspect of the provision, if indeed it goes beyond the common law in this case, which accords privilege in cases where the publisher makes a reasonable mistake regarding the interest of the person to whom the matter is published (Supra. para. 194). We have also pointed out that the present New South Wales provision differs from its Queensland progenitor, which Sir Samuel Griffith believed to represent the common law (Supra para. 186), in that it specifies that the privilege exists whether the answer is made "pursuant to contract or otherwise" (Supra para. 185). It may be assumed that as the provision was originally framed in the Queensland model, though without these words, it was intended to apply to the case of information supplied under contract, as for example by commercial enterprises undertaking to supply information to business firms for consideration concerning the credit of those with whom they might find themselves in financial relations. For Sir Samuel Griffith was a member of the High Court bench which determined that the common law which he intended to state by the provision extended to such a case (See also his interpretation of the Queensland provision when Chief justice of the Supreme Court of Queensland in Ashles v. White Mercantile Agency (1902) Q.W.N. 98). But Dun v. Macintosh ((1906) 3 C.L.R. 1134), the case in which this holding was made, was reversed on appeal to the Privy Council (Macintosh v. Dun (1908) A.C. 1134). Prompt action was taken in New South Wales to nullify the effect of the Privy Council decision by the Defamation Act, 1909, s. 6 (reproduced by s. 30 of the Defamation Act, 1912) which reads as follows:

In any criminal proceedings or civil action against any person or corporation in respect of the publication of any matter, the publication may be deemed to be privileged, notwithstanding that such publication is made in pursuance of a contract whereby such person or corporation undertakes for valuable consideration to supply information to the person to whom such publication is made, if -

(a) the publication is in answer to an inquiry made in pursuance of such contract;

(b) the matter published is relevant to the subject of the inquiry;

(c) the manner and extent of the publication do not exceed what is reasonably sufficient for the occasion;

(d) the person making the publication is not actuated by ill-will to the person defamed, or by any other improper motive;

(e) the person making the publication has reasonable ground to believe the matter published to be true.

The New South Wales legislature thus promptly rejected the view of the Privy Council as expressed by Lord Macnaghten, that the possibly undesirable ways of collecting information to which a firm which dealt in credit might resort made it advisable to insist that they see at their peril that the information obtained was correct (See (1908) 6 C.L.R. 303 at 306). A major difficulty in implementing Lord Macnaghten's view is that it involves the court in distinguishing cases, such as of collecting information through a co-operative association or through a paid agent, which are regarded as attracting privilege. Numerous English cases of which London Association v. Greeniands Ltd. ((1916) 2 A.C. 15) is the leading authority and such cases in Australia as Howe v. Lees ((1910) 11 C.L.R. 361) have engaged in this process of distinguishing, which has gone to such lengths in confining McIntosh v. Dun that Gatley prefaces his assertion of the principle in it with the reservation "if Macintosh v. Dun is to be considered good law" (Gatley on Libel and Slander (6 ed. 1967) 211). In New South Wales we have been free of these complications and materials called to our attention assert a continuing need for the fullest availability of information concerning credit (Supra para. 31). It may, moreover, be anticipated that the stream of decisions developing the new law of liability in negligence for misstatement stemming from Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. ((1964) A.C. 465) may render the obtaining of credit information more difficult except on a business basis. In these circumstances the retention of the privilege for the supply of information under contract seems desirable, and the major remaining question is then whether the privilege should be on the ordinary basis as in the present provision or subject to the special additional safeguards of the Act of 1909 in force until 1958. These appear to be that negligent misstatement destroys the privilege and, possibly, that the privilege does not cover a contract for the continuous supply of information but only for the supply of information in answer to specific enquiries. As to the former, we think that justice may be better done by leaving the matter to the law of negligence rather than by applying wholesale to the case of a negligent misstatement on an occasion of privilege the same rules as are thought appropriate to the situation where the privilege is destroyed by malice. As to the latter, we incline to the view that the matter may most appropriately be handled on ordinary principles relating to whether the privilege of the occasion has been exceeded owing to the manner and extent of publication. In the light of these considerations the following form of words is suggested:

(4) A publication the subject of an action for defamation shall not be deprived of its status as the subject of qualified privilege by reason only that such publication is made in pursuance of a contract whereby a person undertakes for valuable consideration to supply information to the person to whom such publication is made.

This formulation omits the special qualifications imposed on the protection given by the Act of 1909 but follows its general form as appropriate to the objective of imposing a qualification on the common law position rather than the "codifying" form of provision in the Act of 1958.

198. By s. 17(e) qualified privilege is accorded to publications "for the purpose of giving information to the person to whom it is made with respect to some subject as to which that person has, or is believed, on reasonable grounds, by the person making the publication to have, such an interest in knowing the truth as to make his conduct in making the publication reasonable under the circumstances". This provision as originally introduced by Sir Samuel Griffith was intended to state the common law (Supra para. 186) but came to give broader protection as the result of the restrictive decision in Hebditch v. McIlwaine (Supra para. 194) and we have recommended a general provision preserving this broader protection given by this provision as well as that in s. 17(b) (See supra para. 194). For the rest we recommend the repeal of the provision in pursuance of the general policy set out above (Paras. 66-70).

199. By s. 17(f) qualified privilege is accorded to publications made “on the invitation or challenge of the person defamed” and this, Sir Samuel Griffith thought, was either the law or certainly ought to have been (Supra para. 186). We have referred to the distinction drawn at common law between the defence of leave and licence on the one hand and the defence of privilege for statements made at the invitation of the plaintiff on the other (Supra para. 77). The precise scope of the latter at common law, as well as its distinction from the former, is a matter of some refinement. In Orr v. Isles ((1965) 83 W.N. (Pt. 1) 303), which was decided on the common law position, the defendant alleged that the words were published "on the challenge of the plaintiff". Mr. Justice Walsh. considered that the plea, treating it as one of privilege Walsh considered that the plea, treating it as one of privilege rather than consent, was bad because it referred to a challenge of an unspecified kind. "It does not say," he said, "that the plaintiff challenged the defendant to publish the actual matter sued upon or, in more general terms, to publish an account of the whole of the matters which had been in dispute between the plaintiff and the university or to publish whatever the defendant liked" (Id, at 318). It was unnecessary for his Honour to be specific as to which of these might have been sufficient, if alleged. As Mr. Justice Ferguson said, of the same plea in the same case, in determining whether it was a good plea its possible meanings had to be considered, it was capable of meaning "Publish it if you dare” and so understood was clearly no answer to the declaration (Id. at 325). It would seem that if the defendant had pleaded in these terms in a case the facts of which had taken place since 1958, the plea would have been a good plea (Infra para. 208). This, however, is not to indicate that the statute goes beyond the common law in the present respect, but only that the plea would in those circumstances be taken to allege whatever facts were necessary to bring the statutory provision, the wording of which the plea followed, into operation. Professor Fleming suggests that the provision "is wide enough to protect statements which would probably be actionable at common law" but considers that Sir Owen Dixon's view in Loveday v. Sun Newspapers Ltd. ((1938) 59 C.L.R. 503) "approximates more closely (than that of other judges) to the position taken by the Codes” (John G. Fleming, Law of Torts (3 ed. 1965) 546 and n. 30 thereto). This, however, assumes that the position taken by the Codes can be ascertained, yet in fact the provision seems subject to all the uncertainties involved in the different possible meanings referred to by the judges in Orr v. Isles as affecting the defendant's plea in that case. We do not, therefore, as at present advised, consider that this provision should be re-enacted so as to leave its ultimate meaning to be determined by a course of expensive litigation, with possible injustice the eventual outcome if the courts felt bound to interpret the provision in the broadest terms. It does not seem that a person who, refusing to be intimidated by a threat of defamation, says to the prospective defamer "Publish if you dare" should thereby sacrifice rights of action to which he is otherwise entitled and in this respect as in others the common law position referred to by Mr. Justice Ferguson seems satisfactory. The courts have been engaged upon the differentiation of the circumstances in which statements made at the invitation of the plaintiff may properly be regarded as privileged from those in which they may not for some hundred and fifty years (See the cases explored in Gatley on Libel and Slander (6 ed. 1967) 267-70). We see no reason to conclude that no discriminations are necessary and that the whole matter can be clearly and satisfactorily dealt with in a few succinct words of a statute in the manner of the provision now under consideration. Indeed, examination of the cases seems to indicate that the questions raised shade into other heads of qualified privilege, as for example statements made in protection of an interest or in pursuance of a moral or social duty, and this head is therefore particularly within Sir Owen Dixon's words which we have quoted (Supra para. 68) that it is "a matter covered by many decided cases which do not always respond easily to formulas". We suggest that the provision be repealed and no substitution made.

200. By s. 17(g) qualified privilege is accorded to publications made "in order to answer or refute some other defamatory matter published by the person defamed concerning the person making the publication or some other person". We have already given our reasons for suggesting that this provision, too, be repealed and no substitution made (Supra para. 69).

201. By s. 17(h) qualified privilege is accorded to publications made "in the course of, or for the purposes of, the discussion of some subject of public interest, the public discussion of which is for the public benefit and if, so far as the defamatory matter consists of comment, the comment is fair". We have pointed out that this provision was Sir Samuel Griffith's own formulation of what he felt the law ought to be if it was not (Supra para. 186) and have noticed that the proviso that any comment contained must be fair was added when the Queensland Criminal Code was passed into law in 1899 (Supra para. 185). Sir Victor Windeyer explains that the concluding words were "among the 'verbal alterations' introduced by Sir Samuel Griffith into s. 377(8) of The Criminal Code (which had provisions codifying the law of defamation for both civil actions and criminal proceedings)" (Australian Consolidated Press Ltd. v. Uren (1966) 40 A.L.J.R. 142, 149). The President of the Court of Appeal takes the view that the paragraph establishes "what has never been recognized as an occasion of qualified privilege under the common law" (Clines v. Australian Consolidated Press Ltd. (1966) 84 W.N. (Pt. 2) 86, 90). Nevertheless the provision has so far disappointed litigants who have sought to rely on it and we have referred above (Para. 32) to complaints about its obscurity anal inadequacy. It is one of those provisions of s. 17 which, by introducing apparently subjective considerations into the definition of the privilege, has forced the formulation of the difficult distinction between purpose and motive and thereby complicated the division of functions between judge and jury. We have referred to this matter in detail already and suggested that the provision should at any rate be amended on this ground alone if it should be decided not to repeal it (Supra para. 189). The complications concerning the functions of judge and jury caused by the framing of the section are moreover by no means confined to this matter. The general principle that whether the occasion is privileged is a matter for the judge (See supra para. 187) has to be somehow reconciled with the specific provisions of s. 19 whereby "whether any defamatory matter is or is not relevant to any other matter, and whether the public discussion of any subject is or is not for the, public benefit, are questions of fact" . While the President of the Court of Appeal in Justin v. Associated Newspapers Ltd. confined the reference to "relevance" in s. 19 to relevance in connection with good faith ((1966) 83 W.N. (Pt. 1) 17 at 22 - Semble, contra Sugerman, J.A. in Rigby v. Associated Newspapers Ltd. (1966) 86 W.N. (Pt. 2) 159, 167) the remainder of the section clearly allocates one of the major questions of evaluation going to the existence of the privilege under s. 17(h) to the jury. This means that the question whether the public discussion of the subject is for the public benefit has to be distinguished from the question whether the subject is of public interest and, if the need arises, the former question submitted to the jury with the knowledge that the judge has already determined that the subject is of public interest. For the latter is a question for the judge. In Justin's Case Mr. Justice, spells out the questions for the judge as being that "he may have to determine whether there was a discussion, whether the statement was in the course of a discussion" (stated, however, by Sugerman, J.A. to be a matter for the jury - see Rigby v. Associated Newspapers Ltd. (1966) 86 W.N. (Pt. 2) 159, 167 contra to Windeyer, J.'s tentative view in Australian Consolidated Press Ltd. v. Uren. (1966) 40 A.L.J.R. 142, 150) "what was the subject of the discussion and whether the subject was of public interest" (Id. at 51). This seems to involve a curious reversal of the usual relations of judge and jury in that more specific questions like whether there was a discussion in the individual case go to the judge and the more general evaluative question which then arises goes to the jury. But it still might happen that before the judge could determine whether there was a discussion (as a matter of interpretation of the situation) the jury might have to determine questions of disputed fact. The danger that as a result of all this a false step might cause the trial to miscarry or that even if it did not no confidence could be held that the jury had understood correctly instructions which might be extremely complicated seems high. One newspaper complained to us of juries' inability to understand the provision. Nor does it appear what purpose of justice is served by setting up a privilege with such complex elements that it would be of doubtful effectiveness in operation even if the division of the aspects between the elements of the tribunal could be, made more rational than s. 19 currently allows them to be. So far we have made no reference to the difficulties caused by the additional requirement we have mentioned that any comment must be fair. Since ordinarily matter is the subject of qualified privilege irrespective of whether it is fact or comment, that is, whether it is presented by way of inference or not, the afterthought in the Criminal Code of 1899 operates as a restriction on the availability of the section, but a restriction of doubtful extent leaving major issues to be settled by litigation. As Mr. Justice Asprey points out in Cohen v. Mirror Newspapers Ltd. ((1967) 86 W.N. (Pt. 1) 360, 362) and elsewhere (See the citations ibid.) in spite of the inclusion of these words the plea under the provision is not a plea of fair comment but a plea of qualified protection (Id. at 362). Nevertheless, questions can be raised about what, if any, of the tests applicable to fair comment under the plea of that name the comment must answer in order to be fair within the meaning of s. 17(h). One such question is whether the rule applies that comment to be fair must be on facts truly stated, a severe restriction indeed if it applies. However, in Rigby v. Associated Newspapers Ltd. (1966) 86 W.N. (Pt. 2) 159) Mr. Justice Sugerman expressed the view that it would be contrary to the tenor of s. 17 to impose such a requirement upon it, having regard to the consideration that in so far as s. 17 concerns itself with the truth of defamatory matter it deals with it under its requirement of good faith, and then with the question of whether the matter was believed to be untrue rather than with the question of whether it was in fact true (Id. at 167). His Honour's conclusion therefore was that fairness under s. 17 involved "not that it must necessarily be comment upon facts which are true, but that it must be comment upon facts which are not believed to be untrue and whose statement as facts is therefore protected subject to other requirements of ‘good faith’” (Ibid.). Mr. Justice Walsh in the same case agreed that "it is not possible to apply to a question of fair comment arising under s. 17(h) all the concepts and rules of the common law defence of fair comment" (Id. at 179). In Justin v. Associated Newspapers Ltd. Mr. Justice Jacobs asked the question where, if truth is not immediately relevant under s. 17(h), the requirement of fairness in the comment fits in. He thought that "the answer to this question must depend to a large extent on whether under s. 15 it is necessary that the comment must, as at common law, be based upon facts which are true" and added "it may be sufficient to say that the statute does not require that a comment be only considered fair if made on true facts and that such a conclusion would accord in effect with the view of Walsh, J. in Orr v. Isles (83 W.N. (Pt. 1) 303)". We may observe that this approach seems to concentrate on different considerations than those stressed by Mr. Justice Sugerman and Mr. Justice Asprey, which point to the difference between the nature of the privilege defence and the fair comment defence and which would therefore suggest that the meaning of fairness in s. 17(h) is not implicated with the resolution of the uncertainties about the relevance of truth to the ordinary fair comment defence under s. 15. If it were so implicated the outcome could scarcely at this stage be predicted; if, however, it is not, as the remarks of Mr. Justice Sugerman in particular would suggest, the difficulty then seems to be to put an interpretation on the part of the provision which would give it any effect at all which would account for Sir Samuel Griffith's afterthought of specially including it in the Act of 1899 instead of leaving the sorts of consideration which Mr. Justice Sugerman suggests are involved in it to the question of good faith. Sir Victor Windeyer's suggestion is, however, that there is more than good faith involved. "If the expression 'fair comment' has its common law meaning," he says, "as presumably it has, then the effect of s. 18, read with the decision of the Court of Appeal in Thomas v. Bradbury, Agnew & Co. Ltd. ((1906) 2 K.B. 627) in mind, seems to mean that the defendant who invokes the protection of s. 17(h) for any matter of comment must first show that comment to be fair in an objective sense before the onus is put on the plaintiff to establish that it was not made in good faith" (Australian Consolidated Press Ltd. v. Uren (1966) 40 A.L.J.R. 142, 149). This comment casts doubt on all the previous comments which have either sought to separate the notion of fairness in the provision from that of fair comment generally altogether or have at any rate sought to separate it from the common law notion of fair comment. In addition it adds a further matter to complicate the direction to the jury if, as Mr. Justice Jacobs says (Justin v. Associated Newspapers Ltd. (1966) 86 W.N. (Pt. 1) 17, 51) fairness is a jury matter. It is stated in s. 15 that whether a comment is or is not fair is a question of fact and Walsh, J.A. has pointed out that this is not expressed to be for the purposes only of s. 15 (Address for the Council for Advanced Legal Studies of the New South Wales Bar Association "The Defamation Act, 1958 and the Common Law", p. 22) and expresses a view of the defence of fair comment at common law, which is itself a matter of controversy in that it differentiates fairness from honesty as involving objective considerations (See the discussion supra para. 167). In sum, in view of all the complexities to which the paragraph gives rise and to which no satisfactory solution appears immediately predictable or perhaps possible, we are disposed to advocate the repeal of the paragraph. In the next two paragraphs we explore the possibility and desirability of simpler alternatives .

202. Mr. Justice Walsh has suggested that s. 17(h) might have a function in supplementing the possible deficiencies of s. 15, which specifies the occasions on which fair comment is permissible. 'It seems to me," he says, "that Section 15 sets out many of the particular situations in which prior to the Act a judge would have ruled that the comment was on a matter of public interest" but points out that "from the nature of things it is a difficult task to make a complete list of such situations". He concludes: "I think that Section 17(h) will have the effect of supplementing Section 15, by making applicable a defence of fair comment in the field of discussion of subjects of public interest, provided that the public discussion of them is for the public benefit" (Address for the Council for Advanced Legal Studies of the New South Wales Bar Association "The Defamation Act and the Common Law", p. 21). There appears to be a parallel between the function here envisaged for s. 17(h) in preserving residual cases of the defence of fair comment outside s. 15 and that of s. 17(c) as envisaged by the High Court in preserving residual cases of the defence of qualified privilege not covered by the more specific categories of s. 17. We may make the same comment as we did on this function of the latter provision (Supra para. 195) that this function should be unnecessary in view of the existence of s. 3(2) (Discussed supra para. 77) preserving protections or privileges existing at common law aid not dealt with by the Act. It is conceivable, as pointed out in our discussion of s. 3(2), that the right of fair comment might not be viewed as a protection or privilege, and we have made suggestions for the reframing of the section to deal with this possibility (Ibid.). We suggest that the function can be much better performed by a re-drafted s. 3(2) preserving any omitted cases of the defence of fair comment as cases of fair comment than by transmuting them into privileges. In any case, if our suggestion is accepted that the attempt to specify by statute the cases to which the defence of fair comment applies should be abandoned (Supra. para. 155) the function which Mr. Justice Walsh envisages for the provision will not need to be performed at all and no substitute for the provision on its repeal will be necessary on this count.

203. Like the President of the Court of Appeal (See supra para. 201) Mr. Justice Walsh sees the provision as extending protection for the publication of defamatory fact. "If defamatory facts were published," he says, "let us suppose without any comment being added, and this was done in the course of the discussion of a matter of public interest, this might have attracted liability." He adds: "For the circumstance that there was a discussion of a matter of public interest, would not necessarily suffice to give protection under the law of qualified privilege, because it might not be possible to show any relevant duty or interest." “Even if the facts were true," His Honour says, "this would not have been a defence in New South Wales unless the publication (not the discussion) was for the public benefit" (Address cited supra, pp. 21-22). The suggestion that the provision may give added protection beyond that given by common law because it protects a statement by reason of its relation to a general topic and not because of its individual characteristics may be compared with a remark of Sir Victor Windeyer quoting a New Zealand court: "There is no principle of law, and certainly no case that we know of which may be invoked in support of the contention that a newspaper can claim privilege if it publishes a defamatory statement of fact about an individual merely because the general topic developed in the article is a matter of public interest" (North, J. speaking for the New Zealand Court of Appeal in Truth (N.Z.) Ltd. v. Holloway (1960) N.Z.L.R. 69 at 83 affirmed (1960) 1 W.L.R. 997 quoted in Australian Consolidated Press Ltd. v. Uren (1966) 40 A.L.J.R. 142, 150). These remarks give colour to the representation made to us that there is room for a statutory provision, free of the confusing restrictions and divisions of function of s. 17(h), establishing a general privilege for publications on matters of public interest. Lord Shawcross' Committee, whose report was drawn to our attention by a number of organizations reported that "there should be a statutory defence of qualified privilege for newspapers in respect of the publication of matters of public interest where the publication is made in good faith without malice and is based upon evidence which might reasonably be believed to be true, provided that the defendant has published upon request a reasonable letter or statement by way of explanation or contradiction and withdrawn any inaccurate statements with an apology if appropriate to the circumstances" (Report p. 44). This recommendation does not, however, appear to have been included in the Freedom of Publication Protection Bill brought before the United Kingdom Parliament which embodied a number of the other recommendations of the Committee. Perhaps the framers of the Bill were concerned at the broad scope of the recommendation, despite the safeguards it offered. A narrower suggestion made to us was that there should be a privilege in regard to the public conduct of public persons. We have referred (Supra para. 32) to the handling of this subject in the United States in New York Times v. Sullivan and Pauling v. National Review. We are clear that if a privilege was set up in regard to such matters which would not be destroyed by malice in the sense in which it has hitherto been understood in England and Australia an important new privilege would be created. But we see no greater reason for revolutionising the basis of privilege in this area than others, and have already expressed our belief that the development of the English law of qualified privilege over centuries depends on the idea of a privilege given in particular situations for purposes regarded as proper and destroyed by exploitation for other (thus improper, "malicious") purposes. To depart from the notion of malice destroying the privilege would leave a legacy of uncertainty and disorganization. We may also express with great respect to members of the Court of Appeal to whom the matter seems otherwise in prospect, whether either the present s. 17(h) left untouched or some provision such as that recommended by Lord Shawcross' Committee would ever prove more than a trap for litigants. The difficulties of s. 17(h) we have already discussed, the difficulties of the committee's recommended provision would, we believe, begin to appear when it was sought to determine whether a particular fact situation was outside the protection of the common law and yet within the protection of the provision so as to have to meet the special conditions required to be satisfied for the statutory protection. Provisions of this kind have a way of being read down to the common law and this need not be attributed to judicial conservatism but rather to the failure of the framers of the statute to meet the difficulty of pinpointing the alleged deficiencies of the common law so as to frame the statute in a way which appropriately remedies them. The attempt to frame a privilege for statements on matters of public interest by persons with no interest or duty to speak faces the difficulty that the conception of a matter of public interest has an aura of being a subject on which members of the public generally have a duty and/or interest to enlighten one another. A statute which postulates a matter of public interest on which some people have no duty or interest to speak would therefore appear to create uncertainty about the connotation of public interest and this source of uncertainty applies both to s. 17(h) on the view of it suggested by Mr. Justice Walsh and to the type of alternative we are now considering. If this uncertainty were resolved by removing the overtone of matter of public interest as a matter of proper public concern then the establishment of a general privilege could operate with obvious injustice by dragging a man's affairs into the public arena in absence of any need. No doubt a case might be made that at times there has been a tendency to interpret the duties and interests which are the subject of privilege too narrowly and with too close attention to the model of the privilege attaching to private domestic and financial disclosures. Insofar as this may have led to unduly restrictive rules relating to permissible area of disclosure of matter we have sought to deal with it above (Supra para. 196). Whether any useful statutory provision may be made on the subject of the circumstances when the duty or interest may be deemed to exist is doubtful in the light of such matters as the insistence in the cases themselves on the need for liberality in this respect by such distinguished authorities as Sir Owen Dixon (See ibid.). There is further the authority of Pearson, J. in Webb v. Times Publishing Co. ((1960) 2 Q.B. 535) that if the publication has appropriate “status” and appropriate "subject-matter" - that is, matter of public interest in the sense of "a legitimate and proper interest as contrasted with an interest which is due to idle curiosity or a desire for gossip" (Ibid. at 569) it is protected. Gatley, however, proceeds to infer from this and other cases the rule that "the publication of defamatory matter in a newspaper will be privileged where the matter published is of general public interest and it is the duty of the defendant to communicate it to the public" (Gatley on Libel and Slander (6 ed. 1967) 529). So long as an additional requirement that there is a duty to the public to communicate the matter is postulated over and above that which is generated by the very fact that the matter is one of concern to the public in the sense stated - and therefore, one would think, a proper subject of discussion communication between members of the public - the position is left in a rather confusing state. In an effort to contribute to the removal of this confusion the following declaratory provision is put up for discussion:

(5) Where a publication the subject of an action for defamation is of such a kind as to be of public interest (in the ordinary legal sense of being of legitimate and proper interest to the public) that publication shall not be deprived of its status as the subject of qualified privilege by reason only that the duty or interest of the publisher of the matter in communicating it was not other than that which any member of the public legitimately and properly has in communicating such matter.

204. There have been a number of suggestions made to us for the institution of new occasions of qualified privilege (See supra para. 33). The general difficulty with these again appears to be the lack of pinpointing of the manner in which the common law is felt to fall short in respect of the matter of which complaint is made and the consequent lack of specification in the proposals made. Thus when the Australian Broadcasting Commission asks for a privilege for "fair and accurate literary work" in the interests of encouraging historical drama it is not clear whether an attack is being made on the limits of the defence of justification in New South Wales or whether "accuracy" is to be related to some other criterion than the truth of the matters stated. We think that the identification of the "literary" would in such cases also be a matter of difficulty. All these obscurities are perhaps related to the fact that the suggestion would leave the judges to work out what is reasonable with little guidance and with a formulation of the problem to be solved which would cut across different ones of the general defences at present available- privilege, justification, fair comment. We would expect that the position of historical drama would be sufficiently protected (a) by the suggestion we have made for the repeal of the provision which has been thought to pose the threat of action for defamation of the dead (Supra. paras. 88-91) (b) by the substitution of the criterion of public interest (with its existing cultural connotations in the law) for public benefit as the circumstance justifying publication of true matter (Supra para. 174) (c) by the suggestions made for the liberalising of the permissible area of publication (Supra para. 196) of matters in relation to which privilege exists and of the circumstances in which a duty to publish or interest in publishing matter of public interest may be held to exist (Supra para. 203). We believe that by these same suggestions we are using a method of approach which gives legal direction to the reforms which might be aimed at in the Royal Australian Historical Society's request for a privilege for academic work published in good faith. We may also refer in this connection to the very considerable extensions of the use which might be made of published reports of many sorts without danger of action if our suggestions relating to the reform of s. 14 of the present Act were adopted (Supra paras. 134-53). We do not believe that at the present stage it is possible to identify the circumstances in which collection of "field" information involving attack on individual reputations outside that emerging through channels which are the subject of privileged reports, would be generally regarded as a necessary or desirable academic activity overriding private interests. We would, therefore, think that the matter is best left to development from existing conceptions of public interest. With regard to the other matter regarding which representations were made to us for a new privilege, the position of auditors, we are again not clear as to the precise problems envisaged and therefore whether our present proposals bear on the difficulties felt to exist. No representations were made to us concerning a situation treated in Gatley as involving a point of difficulty originating in New South Wales decisions namely the position of a banker who mistakenly informs a customer that a cheque has been dishonoured (Cases are collected in 6 Aust. Digest title Defamation [36]). Gatley says (Libel. and Slander (6 ed. 1967) 256n):

The decisions are conflicting as to whether a communication by a banker to his customer that a cheque paid into his account has been dishonoured is privileged where the banker has in fact omitted to present the cheque for payment. In Browne v. Bank of Australasia (1881) 2 N.S.W.L.R. 325, and Ballin v. Bank of Australasia (1895) 16 N.S.W.L.R. 15, it was held that there was no privilege, for as there was no presentation there was no dishonour and no duty to communicate to the customer. In Levy v. Union Bank Ltd. (1896) 21 Victorian L.R. 738, however, the Full Court of Victoria refused to follow these decisions, holding that the duty to communicate arises out of the relationship of banker and customer immediately the customer pays the cheque into his account, and that a communication that the cheque has been dishonoured is privileged if the banker acts bona fide in the belief that it had been dishonoured. It is submitted that a mistake can create a privileged occasion and that the criticisms by Black J. in Pyke v. Hibernian Bank 1950) Ir. R. at p. 222 of Davidson v. Barclays Bank (1940) 1 All E.R. 316 are correct.

We have no recommendations in mind on this matter as at present advised.

205. We regard the suggestion that there should be some general provision enabling categories of qualified privilege to be extended (Supra para. 34) as being sufficiently met by (a) the suggestions for the reformulation of s. 3(2) (Supra paras. 77-79) which would ensure that New South Wales received the benefit of continuing common law developments in this respect (b) the provisions referred to above (In paras. 196 and 203) for the ensuring that a broad view is taken of the permissible extent of publication of material the subject of privilege and of the duty or interest which may justify publication.

206. We turn in this paragraph from the substantive law of qualified privilege to the procedures appropriately to be followed in determining whether such a defence is to be sustained. Proposals have been made to us (Supra para. 38) or drawn to our attention for control or variation of the functions of juries in this connection. The Freedom of Publication Protection Bill introduced into the United Kingdom Parliament in 1966 contained the following provision:

7. Where in an action for libel tried by judge and jury the, plaintiff in reply to a plea by the defendant of fair comment or qualified privilege alleges express malice, the issue of express malice and all questions relating thereto shall be decided by the judge and not by the jury.

The origins of this provision are in the report of Lord Shawcross' committee (Report p. 36 para. 115). The committee agreed with witnesses that in a number of recent cases juries had found that defamatory matters were published with malice, although the evidence on which such a finding could be based was tenuous. The committee considered whether in these circumstances it was appropriate that the jury should be left to decide the truth of facts alleged to be evidence of malice while the task was reserved to the judge of deciding whether on the facts found by the jury malice was proved. But it "did not find it possible in practice to separate the question of malice nicely into law and fact". The committee concluded that whether a publication is malicious is a technical question, a matter of judgment rather than proof, and so came to their recommendation that the whole matter should be left to the judge. The argument seems to us unconvincing. The common law approach with which the committee was concerned and which will be restored in New South Wales if our suggestions are adopted is that a motive inducing a publication is improper if it is otherwise than that for which the law establishes the kind of privilege which is relied on. The purposes for which the law grants a privilege in a particular set of circumstances are usually readily intelligible, will be explained to the jury, and the question for them is whether those were the motives of the publication or not. To this point the task for the jury appears as purely factual and as much a matter of proof and as little of judgment as any determination of a state of mind can be. We should be prepared to concede, however, that difficulties may occur in an area which the committee does not expressly mention, namely, when it is sought to rely on the course of dealing between the parties when apology was being sought, litigation threatened, or litigation actually being conducted, as evidence of malice. There would seem to be no question but that the judge is in a much better position because of his experience of this type of situation to assess the significance of conduct in it, especially conduct after legal advice has been sought, and to draw the appropriate factual inferences. Indeed it may not be going too far to say that it may be difficult for the jury to achieve the degree of understanding necessary to perform this task satisfactorily at all. We agree with Lord Shawcross' committee that it is difficult to divide the issues but would consider that they are generally of a purely factual nature and that any general move of the kind the committee proposed is a very radical departure from the traditions of the common law in defamation cases. At the same time we are impressed with the representations made to us of the oppressiveness of a situation in which the defendant's freedom to conduct himself in dealings with the plaintiff before the litigation and during the litigation itself is hampered by the availability within limits of his actions as evidence of malice whether in abuse of an occasion of qualified privilege or as an abuse of the right of fair comment or as a circumstance aggravating damages. It carries the oppressiveness one stage further if the conduct is to be interpreted by a tribunal with no knowledge of the strategy or ethics associated with the conduct of litigation. In view of the indivisibility of the necessary consideration of elements going to determine malice and the undesirability of splitting the function of finding the fact of malice from that of the finding of other facts in the case we suggest consideration of the proposal that if the plaintiff wishes to preserve his right to rely on dealings between the parties subsequent to the publication complained of or during the litigation as evidence of malice (wherever malice is an element in liability) he must have the case tried before a judge unless the defendant insists on a jury. We think it possible that this solution may give appropriate weight to the plaintiff's interest in submitting the attack on his reputation to his peers in comparison with the defendant's right in natural justice to defend himself against such charges free from a threat of unjust penalties for so doing. We make a different suggestion as to the manner in which conduct during the litigation may be relied on in aggravation of damage (See infra para. 271) since we conceive that question is not inseparably bound up with that of liability in the action as the question at present under consideration is.

207. We appreciate the object of the suggestion referred to above (Para. 38) that counsel should not be allowed to refer before a jury to bad faith affecting a publication until the judge has held, on legal argument in their absence, that there is evidence to go to them on the matter. We do, however, question whether this suggestion is practical. This would have to mean that the jury would hear the evidence in question at a time when its attention had not been directed to the issues on which the evidence bore and this seems scarcely conducive to understanding. If the suggestion made in the previous paragraph were adopted we believe the circumstances in which the problem to which the suggestion at present under discussion is presented as a solution would become less frequent.

208. We have already referred in other connections to the history of pleading occasions of qualified privilege in New South Wales (Supra paras. 63, 79, 125, 126). Resuming this history for convenience of reference here, we may rely on the judgment of Mr. Justice Sugerman in Motel Holdings Ltd. v. The Bulletin Newspaper Co. Pty. Ltd. ((1962) 80 W.N. 213 (F.C.)). His Honour explains that formerly the defendant was permitted under the general issue to establish such an occasion, even after the pleading rules of Hilary Term 4 Will. IV and Hilary Term, 1853. The reason given, his Honour continues, was that the defence of privileged communication went "to the very root of the matter of complaint" (Lillie v. Price) or because "not guilty" put in issue "as well the lawfulness of the occasion of the publication as the tendency of the alleged libel" (Lewis v. Levy). The plaintiff, his Honour says, might have been content to deny the existence of a privileged occasion and not have sought to establish malice in fact. But if he did, his Honour concludes, there was no need for further pleading since the allegation in the declaration now served as an allegation of malice in fact and the plea of not guilty as a denial of it (Id. at 214-15). In Orr v. Isles both Mr. Justice Wallace ((1964) 82 W.N. (Pt. 1) 103, 111) and Mr. Justice Ferguson ((1966) 83 W.N. (Pt. 1) 303) raised questions about the permissibility of special pleas of qualified privilege at common law, but Mr. Justice Wallace was clear that where legitimate "it would have been essential that all components of the particular claim to privilege should be carefully averred" (Loc. cit.). Then in 1962 came Order XXX rule 30A providing that "in an action for the publication of defamatory matter defences of protection, justification or excuse by law shall be pleaded specially". What was involved in such special pleading of qualified privilege was the subject of subsequent litigation. In Motel Holdings Ltd. v. The Bulletin Newspaper Co. Pty. Ltd. ((1962) 80 W.N. 213 (F.C.)) a majority of the Court held that the defendant when pleading qualified protection was not bound to allege that the publication was made in good faith and this was confirmed by the Court of Appeal in Clines v. Australian Consolidated Press Ltd. ((1966) 84 W.N. (Pt. 2) 86). In the latter case it was laid down by the President and Mr. Justice Moffit that a plea based on a paragraph of s. 17 was not demurrable because it set forth only the precise words of the paragraph, the learned President expressly rejecting the view that it was necessary under the Act for the pleader to allege facts which necessarily showed the existence of the privileged occasion (Id. at 97). While these holdings establish a convenient system of pleading given the specification of occasions of privilege in the Act, some modification of this system would obviously be necessary if there were the general return to the common law in the substantive field with statutory modifications - but no precise specification of concrete statutory occasions of privilege - which we expect to recommend. In Orr v. Isles (discussed in this aspect (Supra para. 79) it was demonstrated how difficult it is to plead common law defences specially, where there is no statutory wording which can be safely followed. We are not, however, disposed to recommend on this account a return to the common law pleading system. We have given reasons for suggesting that the declaration should not contain the allegation of malice which was part of that system (Supra para. 124) in recognition of the fact that however well understood it was by the profession it was confusing to the lay jury. Moreover, the alternative we have suggested to the showing of good faith by the plaintiff - namely a showing of truth, introduces a complexity which would of itself call for a change in the pleading system. To avoid the difficulties for the defendant which Orr v. Isles demonstrated we would expect to recommend a rule that the defence be specially pleaded but that a sufficient plea would be either in the form that the publication complained of was the subject of qualified privilege or in the form that it was a true publication the subject of qualified privilege. The former would then be required to be met by a denial by the plaintiff, and/or an assertion of malice inducing the publication. The latter plea could be met only by a denial. We would expect to mitigate the difficulties for the plaintiff in permitting the defendant to plead in such general terms by provision for particulars as a matter of course. All these matters we would expect to cover by rules, in the first instance in the Second Schedule to the proposed Defamation Act, 1969.

209. In Huish v. Church Publishing Co. Ltd. ((1966) 2 N.S.W.R. 748) Mr. Justice Brereton referred to a gap in the procedural rules to deal with a situation arising out of a replication to a plea of qualified privilege alleging malice. He pointed out that as the Defamation Act is currently construed, if the plaintiff seeks to rely on want of good faith to meet a plea under s. 17 he must raise it specifically by way of replication from which it follows that at the hearing the plaintiff may present his case in chief without any reference whatever to this issue and the defence then enters upon its case without knowing whether any evidence is going to be led by the plaintiff in reply under the replication which has been pleaded. If the defence in its case attempts to call affirmative evidence of good faith or in denial of bad faith, his Honour continues, the admission of such evidence may be objected to by the plaintiff on the grounds that at that stage it is irrelevant. The defendant may indeed close his case without knowing whether the plaintiff is going to prove the matter raised by the replication or not and his Honour recalls this having occurred. The plaintiff may then call evidence in reply. "In my view," Mr. Justice Brereton states, " the defence thereupon ought to be entitled to a further reply, but our rules of procedure make no provision for it, and speaking personally I would, in a proper case in the interests of justice, allow a further reply in such circumstances; but there is no rule and there is no general practice" ((1966) 2 N.S.W.R 748-49). The matter to which his Honour here refers clearly transcends the law of defamation in importance. As a general procedural problem it is under consideration under an independent reference to the Commission, and a solution is envisaged along the lines of the present practice in relation hereto under the English Judicature System.

210. Turning to matters of evidence, we defer consideration of questions of onus of proof of good faith until s. 18 arises for consideration (Infra paras. 212-216). We have referred (Supra para. 50) to complaints that evidence of other defamatory publications, of failure to apologize and conduct at the trial tends to be received improperly as evidence on good faith affecting liability through the development of confusion between its admission for this purpose and the purpose of aggravating damages. Mr. Hunt of counsel suggests that arguments that defendant ought to have apologized, corrected or retracted, and if he did not this is evidence of malice at the time of publication, are illogical (Address for the Council of Advanced Legal Education "The Conduct of the Defendant to an Action for Defamation" p. 7). A failure or refusal to apologize alone, he considers, should not be evidence of a belief in the untruth at the time of publication nor should it be evidence of an ill-will existing at the time the defendant availed himself of the lawful excuse provided by the Act (Id. at 9). In Mr. Hunt's opinion the line of authority is rather thin to show that failure to apologize is evidence on malice though it has led to positive statements in the text-books, (Id. at 11-12) and the authority that other libels are admissible on the question of malice seems not quite conclusive (Id. at 14-15). Of the bearing of failure to establish some one or more pleaded defences, or other conduct at the trial, Mr Hunt says "trial judges have little guidance from the reported decisions upon the relevance of this question to the issue of absence of good faith at the time of publication; and that it may perhaps be an apt time for the question to be once more considered from the first principles of the laws of evidence" (Id. at 26). We believe that the suggestion we have made (Supra para. 205) that where the plaintiff proposes to rely on this particular kind of evidence the hearing should be before a judge may go some way towards meeting the difficulties referred to, since, firstly, the question of admissibility may then lose something of its crucial character and the question of proper weight become more the focus of argument and secondly the functioning of such evidence can be expected to receive more judicial discussion. The matter has for the time being perhaps to be left at that point since, unless it can be suggested that these kinds of evidence should never be admissible, which would not seem a conclusion at all obviously to be inferred from the fundamental principles of the law of evidence, it does not appear practical to frame a statutory provision in sufficiently clear terms to assist rather than hinder the judge in his task.

211. A question more properly in reality one of substantive law than of evidence - and like questions discussed in the immediately preceding paragraphs going somewhat beyond the boundaries of s. 17 - may for convenience be discussed here, namely, whether action should be taken to clarify the circumstances in which the malice of one defamer may be evidence against another. Lord Porter's committee regarded this as a matter on which reform was called for. Under the existing law, the committee says, where an action for defamation is brought in respect of joint publication of a libel, malice on the part of any one of the persons jointly responsible for such publication is sufficient to defeat the plea of "fair comment" or "qualified privilege" so as to render all the defendants jointly liable to the plaintiff (Cmd. 7536 (1948) para. 128). After giving examples and stating that the suggestion for reform is made on the balance of advantage the report states: "We accordingly recommend that in actions for defamation where 'fair comment' or 'qualified privilege' is pleaded by any defendant, such plea shall not be defeated by reason of the malice of any person jointly responsible with him for the publication complained of, whether a co-defendant in the action or not, unless the defendant so pleading knew of the existence of malice on the part of such other person, or unless there was want of reasonable care on his part in failing to know"(Id. para. 132). This recommendation was not implemented by the United Kingdom Defamation Act, 1952 as were many recommendations of Lord Porter's committee, and indeed the point of the qualification in it is not clear to us. If a person has a privilege to state matter it is not apparent why he should be deprived of it because he knows that someone who joins in the statement is actuated more by ill-will than any other motive - he may nevertheless properly consider that it is important the statement be made. Lord Shawcross' committee, which occasionally revived a proposal of Lord Porter's committee, did not revive this one (See Report - Summary of Recommendations, pp. 43-44) no doubt because of the decision in Egger v. Viscount Chelmsford ((1965) 1 Q.B. 248) referred to in the committee's report (At pp. 24, 51). In that case the assistant secretary and ten sub-committee members of an unincorporated club were sued for a libel published on an occasion of qualified privilege. The English Court of Appeal did not attribute the malice of some of those sued to others, on the ground that the privilege of a person will only be defeated so far as he is concerned if he himself is malicious, or if he is liable on the basis of respondeat superior for the malice of a servant or agent. Gatley points out that the case applies the rule where the privilege attaches as a result of some interest or duty of another person who has published the words jointly with him, even though that person is malicious, just as much as where the privilege arises from an interest or duty of his own (Gatley on Libel and Slander (6 ed. 1967) 366). In our view the rule now stated by the Court of Appeal, free as it is from the qualifications proposed by Lord Porter's committee, represents a desirable outcome and the only question on this basis needing consideration is whether it represents the law in New South Wales. This will perhaps depend on whether the High Court of Australia accepts the interpretation whereby the Court of Appeal reconciled the High Court decision in Webb v. Bloch ((1928) 41 C.L.R. 331) with the decision in Egger v. Viscount Chelmsford (Supra). Lord Denning in the latter case describes Webb v. Bloch as a plain case where the principal was liable for the malice of his agent on the principle respondeat superior. At the same time he concedes that Smith v. Streatfeild ((1913) 3 K.B. 764) was cited in support of liability, a case making the innocent agent liable for the defaults of the malicious principal, which the English Court of Appeal overruled in Egger v. Viscount Chelmsford itself, and that the High Court also relied on some other statements of principle broad enough to support the result in Smith v. Streatfeild ((1965) 1 Q.B. at 262). Lord Justice Davies comments in the same case on the High Court decision by saying "it would appear that on this question Sir Adrian Knox, C.J. merely accepted the principle of Smith v. Streatfeild and that the judgment of Isaacs J. was based on the proposition that the defendants were liable for the malice of their agents, a proposition with which no one would quarrel" ((1965) 1 Q,B. at 271). In these circumstances the choice we see is between declaring the principle in Egger v. Viscount Chelmsford to be law in New South Wales as representing the apparently reasonable solution at the present stage (and one in accordance with the view of Sir Frederick Jordan expressed in Dougherty v. Chandler (1946) 46 S.R. 370) or leaving the matter to clarification by the courts lest a declaratory provision should prevent further refinement of the rule in the light of judicial experience. On balance we are inclined to consider provision along the following lines:

Subject to the general tort rules relating to liability for the acts of servants or agents, it is declared that a defence to an action for defamation to which malice or lack of good faith is relevant shall not be defeated by a showing of malice or lack of good faith unless the malice or lack of good faith is that of the defendant himself and aggravated damages for distress caused by the malicious conduct of one person shall not be made the responsibility of another.

BURDEN OF PROOF OF GOOD FAITH (SECTION 18)

212. By s. 18 it is provided that "when any question arises whether a publication of defamatory matter was or was not made in good faith, and it appears that the publication was made under circumstances which would afford lawful excuse for the publication if it was made in good faith, the burden of proof of the absence of good faith lies upon the party alleging the absence". This provision is identical with the Defamation Law of Queensland, 1889, s. 18 except that in the Queensland Act the second last word is "such", a matter to which it seems no significance need be attached. Introducing the Queensland provision Sir Samuel Griffith said he believed it was the law now and added: "It is said so in some of the best books, though it is one of those things that are uncertain" (57 Queensland Parliamentary Debates (1889) 738). At any rate if the position in regard to the onus of proof of good faith was not settled at common law in 1889, it appears to be beyond doubt at the present stage of development. Speaking of the position in relation to the defence of fair comment, Gatley states that "the defendant who relies on a plea of fair comment does not have to show that the comment is an honest expression of his views" (Gatley on Libel and Slander (6 ed. 1967) 369-70). He is able to quote Lord Porter as saying "In alleging any unfairness the plaintiff takes on him or herself the onus, also taken by an allegation of malice to prove that the criticism is unfair either from the language used or from some extraneous circumstance" (Turner v. Metro-Goldwyn-Mayer Pictures Ltd. (1950) 1 All E.R. 449, 481). In view of Lord Porter's interpretation of fairness as honesty, it is clear that Lord Porter's remarks here are directed to the question of good faith. Of the position regarding the defence of qualified privilege, Gatley states: "If the judge rules that the occasion is privileged, the plaintiff must, in order to succeed in the action, prove that the defendant was not using the occasion honestly for the purpose for which the law gave it to him, but was actuated by some indirect or ulterior motive" (Id. at 273-74). Gatley cites Australian authority (O'Connor, J. in Howe v. Lees (1910) 11 C.L.R. 361, 373) as well as English and the Australian authority is summed up by the now President of the Court of Appeal in Motel Holdings Ltd. v. The Bulletin Newspaper ((1963) 80 W.N. 213, 221). Gatley points out that it is otherwise where the question of malice arises in connection with some defences of statutory origin. He says: "There is one exception to this rule, viz., in the case of the statutory privilege attaching to the publication of an extract from, or abstract of any parliamentary report, etc.; ... Absence of malice has also to be proved by the defendant in a defence under Lord Campbell's Act ... and in an offer of amends for unintentional defamation, under s. 4 of the Defamation Act 1952" (Id. at 369, n. 17).

213. While the common law position has been largely clarified, s. 18 has turned out to be a source of embarrassment when considered in relation to other sections of the Act. In the first place the exact circumstances in which the onus is imposed in cases to which the section applies are somewhat obscure and in the second place the area of cases to which the section applies is obscure. We have noticed the criticisms of the President of the Court of Appeal and others on both of these matters in our general review of criticisms of the present law (Supra para. 49) and have referred in particular to the manner in which the reference to “circumstances which would afford lawful excuse for the publication" raises doubts about whether the section applies beyond the matters of "qualified protection" set out in s. 17 and qualified privileges retained from the common law (Supra para. 119). As Sir Gordon explains, the phrase "excused by law" appears from the scheme of the Act to refer to s. 17 and both the context and the wording of s. 18 would thus appear to limit its application to s. 17 (Motel Holdings Ltd. v. The Bulletin Newspaper Co. Pty. Ltd. (1962) 80 W.N. 213, 221). His Honour's interpretation is supported by what we know of Sir Samuel Griffith's intentions in laying out the scheme of the Act (Supra paras. 117-18). On the other hand, as we have indicated the headings of the present Act are somewhat at variance with Sir Samuel Griffith's classificatory notions and it has been stated (By 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") that the section is applicable when a question of good faith arises under s. 14 or s. 17. (Counsel relies on Ronald v. Harper (1910) 11 C.L.R. 63 and Motel Holdings Ltd. v. Bulletin Newspaper Co. Pty.Ltd.(Supra) but not apparently for the proposition he makes regarding s. 14 for the former case arose at common law and the only reference to s. 14 seems to be by the now President of the Court of Appeal who took the view that s. 18 is confined in its operation to the kind of matter dealt with in s. 17). Passing from the difficulty of determining the cases to which the rule applies to problems of just in what circumstances the section operates to transfer the onus, Mr. Rath suggests a complication in that there may be a difference between the meaning of good faith in ss. 1 7 and 18 such that the onus of proof of good faith would not be transferred until some of the matters going to good faith in s. 17 were proved. He says: "S. 18 provides that the publication must be made under circumstances which would afford lawful excuse for the publication if it was made in good faith as a condition precedent to the burden of proof lying upon the plaintiff." He adds: "This leaves open the question of what circumstances must be shown to procure this result." Then he details the definition of good faith in s. 17 and concludes: "Some of these matters might well be 'circumstances' within the meaning of s. 18." (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 for Defamation, p. 7.)

214. In view of the above we should expect to recommend that s. 18 be repealed and not replaced. The difficulties in the language referred to by the President of the Court of Appeal of which an example is given by Mr. Rath would in any case call for its drastic amendment and, since its object was no more than to represent the common law, it seems appropriate that with the example of the difficulties to which it has led before us, this attempt might at this stage appropriately be abandoned. The burden of proof of malice on occasions of qualified privilege is clearly established by the authorities referred to above and the law seems to meet with general though not universal approval. With regard to the burden of proof in relation to good faith under s. 14 we have already suggested that this matter be dealt with by specific statutory provision (Supra para. 151 and subsection 4 of the suggested section dealing with privileged reports set out supra para. 153). The suggested provision is in line with the view of the law in relation to the predecessor of the present section held by Sir Frederick Jordan, who said in Campbell v. Associated Newspapers Ltd. ((1948) 48 S.R. 301, 65 W.N. 113): "I think that the framework of the section sufficiently indicates that the burden of establishing this [i.e. that the report is not in good faith for the information of the public] is on the plaintiff, who may, of course, establish it in chief, or by material given by or elicited from the defendant or his witnesses, or in reply" (48 S.R. at 303, 65 W.N. at 115). There seems no reason why we should change this position in view of the importance of reporting the kind of official or public material with which this section is concerned. Concerning the defence of fair comment, it is not clear as a matter of substantive law that the malice of the defendant makes his comments unfair within the meaning of s. 15 (See supra para. 160). If it does, the language of s. 18 does not seem fitted to establishing where the onus of proof of malice lies. In view of the doubts about the present position and the extensive provision made for the allied matter of pleading in our suggestions for reform of the law it seemed desirable to us to suggest statutory provision for making it clear that the onus lay on the plaintiff of proving bad faith once the case of the defendant was made out by proof of the other matters going to fairness, that is usually, truth and the consistency of the circumstances of the publication with the hypothesis of honest inference of the comment from the facts on which it was based. This suggestion we have included in the fair comment section (Supra para. 169 draft subsection (6) and para. 170).

215. Attention has to be given to the question whether action is needed in New South Wales concerning the position regarding onus of proof in those cases where Gatley claims the onus of proof of lack of malice rests in England upon the defendant (See supra para. 212). Gatley says: "The publication in print of an extract from, or abstract of, any parliamentary report, paper, vote, or proceedings published by or under the authority of either House of Parliament is privileged, provided the defendant prove that he published such extract or abstract bona fide without malice" (Gatley on (6 ed. 1967) 276). The authority is the Parliamentary Papers Act 1840 s. 3 as interpreted by Mr. Justice Phillimore in Mangena v. Wright ((1909) 2 K.B. 958, 976). This section was adopted in New South Wales for the proceedings of the Legislative Council (and later of the Legislative Assembly) by the Evidence Act, 1849 (13 Vic. No. 16) s. 9 of which provides that "it shall be lawful in any civil or criminal proceeding to be commenced or prosecuted for printing any extract from or abstract of such Report Paper Votes or Proceedings to give in evidence under the general issue such Report Paper Votes or Proceedings and to show that such extract or abstract was published bona fide and without malice and if such shall be the opinion of the jury a verdict of not guilty shall be entered for the defendant or defendants". This provision was consolidated as s. 22 of the Defamation Act, 1901 but after the enactment of the Defamation Amendment Act, 1909 making more general provision for privileged publication of reports (see supra para. 134) it became unnecessary so far as publications in newspapers were concerned. The provision was, however, continued until 1958 by s. 28 of the Defamation Act, 1912, when the Defamation Act, 1901 was repealed. Then, by the Defamation Act, 1958, the protection originally given to newspapers by the Act of 1909 was extended to all publications (Supra para. 134) and s. 28 thereupon apparently became entirely unnecessary. Thus, when the Act of 1958 repealed the Act of 1912, s. 28 was not re-enacted. Assuming that the onus of proof of good faith in regard to the reports covered by s. 14 of the Act of 1958 is for one reason or another where Sir Frederick Jordan said it was in relation to the similarly framed section (s. 29) in the Act of 1912 the effect of the Act of 1958 has been to work a reversal of the onus of proof regarding good faith from defendant to plaintiff in relation to non-newspaper publications which had previously been worked by the Act of 1909 in regard to newspaper publications. We think that the Act of 1958 in this respect removes an anomaly and we would not wish to see the present position altered. We therefore do not expect to recommend any provision to revive s. 28.

216. Gatley's second exceptional case where the onus of proof of absence of malice rests on the defendant arises out of the rule he states that "the onus of proving a defence under s. 2 of Lord Campbell's Act rests entirely on the defendant" (Gatley on Libel and Slander (6 ed. 1967) 376). This provision deals with the "defence" of apology and is represented in New South Wales by s. 22 of the Defamation Act, 1958. Since it deals with a "defence" excusing an act which was wrongful at the time it was committed it seems to be subject to different considerations from those applying where the question is whether the act was wrongful at the outset and we would not expect to recommend a change in this provision in this respect did we not propose that it should be repealed altogether. The "defence" is dealt with below (Paras. 225-227). So is Gatley's third exceptional case, the "defence" of offer of amends under s. 4 of the United Kingdom Defamation Act, 1952 para. 228-235) to which similar remarks apply and which we propose should be introduced here to replace s. 22.

RELEVANCE AND PUBLIC BENEFIT (SECTION 19)

217. By s. 19 it is provided that "whether any defamatory matter is or is not relevant to any other matter, and whether the public discussion of any subject is or is not for the public benefit, are questions of fact". It seems clear that the language of this section relates it, in the matter of "relevance", only to matters arising under s. 17 (and perhaps then only when the question is good faith - see supra para. 191) and in the matter of "whether the public discussion of any subject is or is not for the public benefit" to s. 17(h) only (See A.F. Rath, Q.C., Address for the Council for Advanced Legal Education of the New South Wales Bar Association "Pleading and the Onus of Proof in the Action of Defamation" p. 9). While the heading "Relevancy and Public Benefit Questions of Fact" might be wide enough to indicate an intention to apply the section to the question of public benefit arising under the defence of justification in s. 16, the language of s. 19 itself follows that of s. 17(h) so closely that there could be no doubt about the matter. This means that there is no provision in the present legislation with regard to whether public benefit in s. 16 is a matter for the judge or jury, although the previous legislation allocated it in terms to the jury. We have criticised or referred to criticisms both of the provision for making relevance under s. 17 a substantive part of the question of good faith (Supra paras. 27, 191) and of that which makes whether a discussion is for the public benefit specifically part of the circumstances of a privileged occasion, particularly as a question of fact (Supra para. 201). We have made suggestions to return the questions of relevance to the common law,(Para. 191) and to refer where necessary in the statutory provisions concerning the defence of justification and qualified privilege not to public benefit but to "public interest". This will be a question for the judge, in the former case by specific provision and in the latter because the statute merely refers to a common law category of qualified privilege the determination of which is as usual for the judge. If these suggestions are followed the conceptions in s. 19 will disappear from any new Act. The section itself will then need to be removed and we expect to recommend that this be done.

UNLIKELIHOOD OF INJURY (SECTION 20)

218. Under the heading "Defence in Case of Defamation by Words, Sounds, Signs, Signals or Gestures" are the two subsections of s. 20. By subsection 1 "In any case other than that of words intended to be read, it is a defence to an action or prosecution for publishing defamatory matter to prove that the publication was made on an occasion and under circumstances when the person defamed was not likely to be injured thereby". By subsection 2 the defence may be set up under a plea of not guilty. The provision first appeared in New South Wales as s. 2 of the Act of 1847 and was designed to discourage the trivial actions which might otherwise have been brought as a result of s. 1 abolishing the requirement of proof of special damage which formerly existed, subject to a few exceptions, in the case of actions for slander - roughly meaning spoken as distinct from written defamation. In its 1847 version the defence was not available where the words imputed an indictable offence, the giving effect to the defence was at the jury's option (Perry v. Hoskings (1865) 4 S.C.R. 124) and there was no provision for its availability in criminal prosecutions since no prosecution for slander was possible in New South Wales before 1958. The original version remained the law in this State until that time (See the Defamation Act, 1901 s. 4 and the Defamation Act, 1912 s. 5). The same version became part of the law of Queensland when that State was separated from New South Wales, but was altered by Sir Samuel Griffith to the form in which it appeared in the Defamation Law of Queensland, 1889, which is substantially identical with subsection 1 of the present New South Wales s. 20. The New South Wales draftsman by subsection 2 preserved a feature of the original Act of 1847 on which the Queensland Act made no provision. Of the removal of the qualification on the availability of the defence that the words must not impute an indictable offence, Sir Samuel Griffith in introducing the Queensland legislation said:

One man says, "You are a thief." It does not do the other any harm. It may really have been said as a joke, and the statement has done him no injury, but although it may have been said in joke, and the statement is not likely to do injury, that defence is not available, and the plaintiff will get a verdict. This clause proposes to alter the law by providing that in all cases where injury is not likely to have been done, no action can be sustained and I do not think it ought (57 Queensland Parliamentary Debates (1889) 738).

Sir Samuel made no reference to another difference from the earlier legislation in his drafting, namely, that whereas under the old Act it was the "duty of the jury to restrict successful actions of slander as distinct from libel, to instances where the plaintiff's 'character' was likely to be injured upon the occasion complained of" (per Evatt, J. in Lang v. Willis (1934) 52 C.L.R. 637, 671), in the new Act the reference to character disappears and the section speaks only of unlikelihood of injury to the person defamed.

219. There seems no reason to doubt that some provision is still desirable to achieve the objects for which the prototype of the present section was designed in 1847. In 1948 Lord Porter's committee declined to provide for slander generally to be actionable without proof of damage in England because "slander is often trivial, not infrequently good-tempered and harmless, and in that form commonly enough a topic of conversation" (Cmd. 7536 (1948) para. 38). The report adds: "If all slander were actionable per se, the scope for trivial but costly litigation might be enormously increased" (Ibid.). In New South Wales, while complaint is certainly heard of costly litigation, it does not appear to be attributed to the liberalised conditions of actionability in this State of slander, and the present section may be a factor in keeping the consequences of this liberalisation within bounds. On the other hand there has been occasional concern that the section may have been used to permit a jury to give effect to prejudice in favour of a defendant so as to refuse a remedy to a plaintiff with a legitimate cause of action. In Lang v. Willis ((1934) 52 C.L.R. 637) the question whether it was possible to come to the conclusion the jury did in the circumstances divided the High Court. Mr. Lang, the labour political leader, had strongly attacked the plaintiff at political meetings for his actions and the jury held nevertheless that there was no likelihood of injury. The situation seems to have been one where there was some danger that a jury with a political admiration of the defendant might be tempted to utilise the section to give effect to their view of the plaintiff's lack of merit as compared with the defendant rather, than to apply their minds impartially to the question whether the plaintiff's reputation was likely to be injured. Among those who dissented from the majority view that the jury could properly come to the conclusion that there was no likelihood of injury was Sir Owen Dixon, who said that the speeches were delivered to very large public audiences, the members of which could not, of course, be identified. He added: "In my opinion, there was no evidence to support a finding under sec. 5 that the occasion was such that the plaintiff's character was not likely to be injured by the defamatory words" (Id. at 660).

220. Sir Owen's remarks call attention to the fact that because the present section is one of the surviving remnants in this State of rules requiring different legal consequences according as the defamation is libel or slander, to this extent it perpetuates the anomalies involved in the distinction which have been freely commented upon. With modern means of communication the potentialities of injury of the spoken word may in particular cases be more serious because the consequences of the spoken word can be more widespread than those of some forms of written word. Thus it is strange that the defence of unlikelihood of injury could theoretically be raised in the case of a television broadcast but not in the case of a private letter. We think there may be reasons why at this stage the removal of this anomaly should be in the direction of extending the protection given to slander to libel. In the first place, there are cases in which quite substantial damages are given for libel where it seems inconceivable that any damage could have been done and the only effect of the legal proceedings is to enable the plaintiff to "score off" the defendant. In Theaker v. Richardson ((1962) 1 All E.R. 229, (1962) 1 W.L.R. 151) the defendant, in what was described judicially as a "sordid, trumpery dispute" wrote a letter in a cheap envelope to the plaintiff herself and dropped it through her door. It was, according to the plaintiff's case which was viewed in this respect with some suspicion, opened by her husband who thought it was a political pamphlet, and thus the requirement of publication for an action of defamation was satisfied. The husband must have known that the allegations the letter contained were wild and vulgar abuse without foundation, as for example, the claim that his wife kept a brothel. Nevertheless an amount equivalent to $1,250 Australian was awarded in damages because it was "a serious libel". It seems to have been just this kind of case which the earlier common law doctrine of interpreting words "in mitiori sensu" was designed to keep out of court, and it is suggested that one function which might be conveniently performed - or rather extended in operation - by the application of the defence of unlikelihood of injury to libel as well as slander would be just this one. (The section does not appear, however, to have been completely effective to prevent substantial damage awards in slander cases analogous to Theaker v. Richardson - see Perry v. Hoskings (1865) 4 S.C.R. 124.)

221. In framing any new section we have to consider, firstly, whether there should be a limitation excluding accusations of indictable offences from the operation of the section. On this issue we are disposed to accept the views expressed by Sir Samuel Griffith in the quoted passage (Supra para. 218) and leave the section in this respect as it is. Secondly, the question arises whether the test should be likelihood of injury to "character" (which we presume here must mean "reputation") as in the old section, or likelihood of any injury at all, as under the new section. The present section is presumably less extensive in operation because of this wording, since the case where for example, the damage the publication might cause was nervous shock, or even mental distress, to the plaintiff would be excluded. We are disposed to think that, having regard to the extent to which the cases have gone in permitting the recovery of "parasitic" damages in the case of defamation once publication of defamatory matter is proved (supra para. 3 and, e.g., Rigby v. Mirror Newspapers Ltd. (1963) 81 W.N. (Pt. 2) 38) the section would deprive the plaintiff of an action in which he would otherwise be legitimately entitled to substantial damages if the restriction applicable before 1958 were reimposed. We therefore are inclined to use the term "injury" rather "injury to character" and to define it as including serious mental distress of a more than passing nature which a reasonable man could be expected to suffer in the circumstances. The question whether the section should be applied to criminal prosecutions for defamation (as in the present Act) offers no problem if our suggestion (Infra paras. 244-247) that the crime of defamation be abolished is adopted.

222. We have also under consideration the question whether the defence is appropriately a matter for a jury as it has been considered in the past or whether it is not a matter the decision of which by the judge would prevent misuse of the section. This may occur when feelings are likely to be inflamed by sectional issues, as may have happened in Lang v. Willis, and a question calling for general assessment of a situation is submitted to a tribunal lacking training in objectivity. One possible choice is that the matter might properly be one for application to the judge by the defendant leaving power for the judge to take special verdicts on any disputed matters of fact necessary for the proper assessment of the situation. If the judge ruled against the defendant but the jury none the less thought that the facts were as described in the section the jury would be in a position to assess damages at a nominal amount.

223. If the matters discussed in the previous paragraphs were resolved in accordance with the present trend of thinking we should expect a recommendation of a section somewhat as follows to be the result:

(1) It shall be a defence to any action for defamation that the publication was made on an occasion and under circumstances where the plaintiff was not likely to be injured thereby.

(2) For the purposes of subsection (1) of this section, occasions and circumstances in which the plaintiff is likely to be injured shall include those on and in which a reasonable man in the plaintiff's position might be expected to suffer serious mental distress of a more than passing nature.

(3) The ultimate question in the defence referred to in this section shall be a question of law.

(4) The defence referred to in subsection (1) of this section may be set up under a plea of not guilty provided that the defendant shall with his pleading file and serve a notice of his intention to rely on the defence.

APOLOGY IN MITIGATION (SECTION 21)

224. By s. 21 it is provided that "in an action for defamation the defendant may (after notice in writing of his intention to do so duly given to the plaintiff at the time of filing or delivering the plea in the action) give in evidence in mitigation of damages that he made or offered an apology to the plaintiff for the defamation before the commencement of the action, or, if the action was commenced before there was an opportunity of making or offering the apology, as soon afterwards as he had an opportunity of doing so". This provision constitutes s. 1 of Lord Campbell's Act, the (United Kingdom) Libel Act 1843 (6 & 7 Vict. c. 96). It was adopted in New South Wales by the Act of 1847 (s. 3) and has been re-enacted in successive enactments (Defamation Act, 1901, s. 5 and Defamation Act, 1912-1948, s. 6). The necessity for the section has been questioned, Spencer Bower saying that "Sect. 1 of the Libel Act, 1843 ... is quite useless, and (even if ever required) is certainly not so now. The fact that the defendant has made, or offered to make, what was, or ought to have been, the main satisfaction sought by the plaintiff in the action and which, in old Scotch law ... used to be formally claimed, under the name of 'palinode' as part of the relief sought, must obviously go in reduction of damages" (Spencer Bower on Actionable Defamation (2 ed. 1923) 158). A newspaper interest has asked us to recommend repeal of the section. It would seem, however, that if the section does not give the defendant any right that he would otherwise lack, it regulates the exercise of his right, ensuring both that the defendant will be alert to exercise the right lest he should lose it, with the result that the plaintiff's interests are not prejudiced by unnecessary delay, and that the earliest information is given of the intention to use the apology in the action. We expect to recommend that this section be further re-enacted.

APOLOGY IN DEFENCE (SECTION 22)

225. By subsection (1) of s. 22 it is provided that "In an action for the publication of defamatory matter in a periodical, the defendant may plead that the matter was published without actual ill-will to the person defamed or other improper motive, and without gross negligence, and that before the commencement of the action, or at the earliest opportunity afterwards, he inserted in the periodical a full apology for the defamation or, if the periodical was ordinarily published at intervals exceeding one week, offered to publish the apology in any periodical to be selected by the plaintiff". By subsection (2): "The defendant upon filing the plea may pay into court a sum of money by way of amends for the injury sustained by the publication of the defamatory matter". By subsection (3): "To the plea the plaintiff may reply generally denying the whole thereof. This section reproduces in substance s. 2 of Lord Campbell's Act (England) as that Act was amended by the Civil Procedure Acts Repeal Act 1879 Schedule Part II and the Statute Law Revision Act 1892, s. 1. Lord Campbell's Act as originally enacted included provision (excised by the Acts referred to above) describing what the effect of the payment into court was to be, and when it was adopted in New South Wales by the Act of 1847, s. 6, words were included intended to adapt the English provision on this matter to the local legislative situation. The New South Wales adaptation was that "such payment into Court shall be of the same effect and be available in the same manner and to the same extent and be subject to the same rules and regulations as to payment of costs and the form of pleading except so far as regards the pleading of the additional facts hereinbefore required to be pleaded by such defendant as if actions for libel had not been excepted from the personal actions in which it is lawful to pay money into Court under an Act of the Governor and Legislative Council of New South Wales passed in the fifth year of the reign of Her Majesty Queen Victoria intituled An Act for the further amendment of the Law and the better advancement of justice". The meaning of the section generally was considered by the Full Court of the Supreme Court of New South Wales in Hutchison v. Australian Newspaper Co. ((1899) 20 N.S.W.L.R. 184). The history of the section and the view taken by the Court of its effect are both perhaps sufficiently indicated in the following passage from the judgment of Mr. Justice Owen:

Before the passing of the Defamation Act the right to pay money into Court was limited by 5 Vict. No. 9, s. 2 of which provided that "it shall be lawful for the defendant in all personal actions (except actions for libel ... ) to pay into Court a sum of money by way of compensation" etc. Then there came the Defamation Act (11 Vic. No. 13), which says that, notwithstanding the limitation of the right to pay money into Court in the Act 5 Vic. No. 9, the defendant in a libel action may pay money into Court if it is accompanied by a plea setting out that the libel was inserted without gross negligence, and without actual malice, and that a due apology was made. Payment into Court was not an ordinary payment into Court in an ordinary action but it had to be accompanied with a very stringent plea. If, on the trial, the plea failed in any one particular, then the money paid into Court was an unauthorised payment, and, therefore, would belong to the defendant (Id. at 189).

Thus in the case in question when the jury awarded the plaintiff "£200 independently of the money paid into Court" the sum of £50 paid into Court was returned to the defendant. The inference which the Commissioner for the Consolidation of the Statute Law responsible for framing the Defamation Act, 1901 drew from this holding of the difference between the effect of payment in under this defamation legislation and of payment in under the law applying to other cases was that the passage we have quoted from the Act of 1847 was nugatory. A note is attached to the Act reading: "This provision [the passage we have quoted] has apparently no meaning at all. See Hutchison v. Aust. N. Co., 20 N.S.W.L.R. p. 184; but is retained for whatever it may be worth" (Cockshott & Lamb, Statutes of N.S.W. 1901, 266). When the Defamation Act, 1901 was repealed by the Defamation Act, 1912 this passage was not re-enacted (See s. 9) and the section assumed virtually its present form. In this matter although the Act of 1958 contains some verbal alterations in the direction of the Queensland Defamation Law of 1889, on the matter of payment in it adheres to the previous New South Wales law and is substantially different from Sir Samuel Griffith's provision on the subject which reads: "The defendant must [not may] upon pleading such defence, pay into Court a sum of money by way of amends for the injury sustained by the publication of the defamatory matter, and such payment into Court shall be of the same effect in all respects as in other cases of payment into Court" (s. 22).

226. The position in which the present section was left as a result of its interpretation in the cases of the late nineteenth century does not seem to us to be satisfactory. Both Levien v. Fox ((1890) 11 N.S.W.R. 414) and Hutchison v. Australian Newspaper Co.((1899) 20 N.S.W.L.R. 184) make it an essential part of the defence that the defendant should pay money into court, so that the sufficiency of the amount becomes the fourth matter the defendant has to prove along with lack of malice, absence of gross negligence and the timely full apology. This view was apparently taken in reliance on English cases interpreting the English Lord Campbell's Act as qualified by the (English) Libel Act, 1845 s. 2 which provided that "it shall not be competent to any defendant in such action [i.e. under s. 2 of Lord Campbell's Act] whether in England or in Ireland to file any such plea, without at the same time making a payment of money into court by way of amends as provided by the said Act but every such plea so filed without payment of money into court shall be deemed a nullity and may be treated as such by the plaintiff in the action". The rapidity with which this Act followed Lord Campbell's Act would seem to indicate a realisation that the workability of the scheme of s. 2 of the original Act required that payment of a sufficient amount in satisfaction should be obligatory for a successful defence under it. Yet the Act of 1845 was apparently ignored in the New South Wales Act of 1847 which adopted the Act of 1843, and does not appear to have been adopted since. Hence the New South Wales cases in interpreting the New South Wales Act as the English cases do the English provisions as a whole would seem to be placing an interpretation on our Act which its language will not reasonably bear. The straining of the New South Wales provision to fit it to the sole function of permitting payment into court in newspaper defamation proceedings under strictly guarded restrictive conditions not applicable in actions generally, was by the time of the decisions mentioned above in any case fitting the section to an obsolete purpose. By the Defamation Act, 1886 (50 Vic. No. 26) s. 2 it was provided that "In all actions for libel and slander it shall be lawful for the defendant or for one or more of several defendants to pay into Court a sum of money by way of compensation satisfaction and amends". This section was continued as s. 7 of the Act of 1901 and s. 8 of the Act of 1912. This provision was not continued in the Act of 1958, but this does not appear to have altered the law as it affects a sole defendant, for the Common Law Procedure Act, 1899 had independently by s. 80 given effect to the state of the law effected in this respect by the Defamation Act, 1886, by ceasing to except libel from the cases in which payment into court was permitted in the ordinary way. But by subsection (2) of the Act of 1899 nothing in that section is to affect the provisions of any Act whereby one or more of several defendants may make payment into Court without leave (which would have included s. 2 of the Act of 1886). Hence the repeal of s. 8 of the Act of 1912 by the Defamation Act, 1958 would seem to have imposed the requirement of seeking leave of the judge for payment into court in the ordinary way on one of several joint defendants in an action for defamation. It is in any case difficult to see why defamation should occupy an exceptional position in this regard. Apart from the right to pay money into Court in defamation proceedings under s. 80 of the Common Law Procedure Act, Mr. Justice Owen held in Roach v. Truth and Sportsman Ltd. ((1937) 54 W.N. 172) that a defendant might pay money into court with a denial of liability under r. 89A of the Supreme Court rules as it stood at that time. This was confirmed by the Full Court in Storer v. Smith's Newspapers Ltd. ((1939) 56 W.N. 42). Rule 89A had been introduced in 1926 and is now replaced by rr. 4-8 of Order XII of the present Supreme Court Rules.

227. Of the effect of the general English provision for payment into court on the defence under Lord Campbell's Act Gatley writes:

Since a defendant may now pay money into court in an action of libel, the defence under section 2 of lord Campbell's Libel Act is no longer popular. It is better for a defendant who has no other defence to publish an apology in the newspaper in which the libel appeared, pay a sum of money into court by way of satisfaction under Order 22, and plead the apology in mitigation of damages. For if the defendant fails in a defence under section 2 of the Libel Act, he may have to pay all the costs of the action, even though the jury award the plaintiff an amount less or no greater than the sum paid in. Whereas if the defendant pay money into court under Order 22, r. 1 and the jury award an amount less or no greater than the sum paid in, judgment will be given for the defendant, and he will be entitled to be paid out the unawarded balance (if any) of the sum paid into court, and will usually receive the whole of his costs since the time when payment into court was made (Gatley on Libel and Slander (6 ed. 1967) 376-377) .

Comparison with s. 80 of the Common Law Procedure Act (New South Wales) and Order XII of the Supreme Court Rules (New South Wales) would indicate that Gatley's points could be made perhaps more strongly in relation to the local situation. In New South Wales moreover the position is not merely that the section is obsolete because of its apparent disadvantages but that it may be the subject of further litigation because of the doubts which can be raised about the validity of the interpretation of it by the courts in the past. It is particularly for the latter reason that we are disposed to feel that we should not proceed as Lord Porter's committee appears to have done and ignore the existence of this provision when making new proposals for a defence of amends. As at present advised we think we should recommend the repeal of the section and the introduction of a new defence along the general lines recommended by Lord Porter's committee.

228. The (United Kingdom) Defamation Act 1952 contains the following as s. 4 passed in consequence of, though not in exact compliance with, the recommendations of Lord Porter's committee (See paras. 61-73 of Cmd. 7536):

(1) A person who has published words alleged to be defamatory of another person may, if he claims that the words were published by him innocently in relation to that other person, make an offer of amends under this section; and in any such case -

(a) if the offer is accepted by the party aggrieved and is duly performed, no proceedings for libel or slander shall be taken or continued by that party against the person making the offer in respect of the publication in question (but without prejudice to any cause of action against any other person jointly responsible for that publication);

(b) if the offer is not accepted by the party aggrieved, then, except as otherwise provided by this section, it shall be a defence, in any proceedings by him for libel or slander against the person making the offer in respect of the publication in question, to prove that the words complained of were published by the defendant innocently in relation to the plaintiff and that the offer was made as soon as practicable after the defendant received notice that they were or might be defamatory of the plaintiff, and has not been withdrawn.


(2) An offer of amends under this section must be expressed to be made for the purposes of this section, and must be accompanied by an affidavit specifying the facts relied upon by the person making it to show that the words in question were published by him innocently in relation to the party aggrieved; and for the purposes of a defence under paragraph (b) of subsection (1) of this section no evidence, other than evidence of facts specified in the affidavit, shall be admissible on behalf of that person to prove that the words were so published.

(3) An offer of amends under this section shall be understood to mean an offer -


(a) in any case, to publish or join in the publication of a suitable correction of the words complained of, and a sufficient apology to the party aggrieved in respect of those words;

(b) where copies of a document or record containing the said words have been distributed by or with the knowledge of the person making the offer, to take such steps as are reasonably practicable on his part for notifying persons to whom copies have been so distributed that the words are alleged to be defamatory of the party aggrieved.


(4) Where an offer of amends under this section is accepted by the party aggrieved -

(a) any question as to the steps to be taken in fulfilment of the offer as so accepted shall in default of agreement between the parties be referred to and determined by the High Court, whose decision thereon shall be final;

(b) the power of the court to make orders as to costs in proceedings by the party aggrieved in respect of the publication in question, or in proceedings in respect of the offer under paragraph (a) of this subsection, shall include power to order the payment by the person making the offer to the party aggrieved of costs on an indemnity basis and any expenses reasonably incurred or to be incurred by that party in consequence of the publication in question;

and if no such proceedings as aforesaid are taken, the High Court may, upon application made by the party aggrieved, make any such order for the payment of such costs and expenses as aforesaid as could be made in such proceedings.


(5) For the purposes of this section words shall be treated as published by one person (in this subsection referred to as the publisher) innocently in relation to another person if and only if the following conditions are satisfied, that is to say -

(a) that the publisher did not intend to publish them of and concerning that other person, and did not know of circumstances by which they might be understood to refer to him; or

(b) that the words were not defamatory on the face of them, and the publisher did not know of circumstances by virtue of which they might be understood to be defamatory of that person;


and in either case that the publisher exercised all reasonable care in relation to the publication; and any reference in this subsection to the publisher shall be construed as including a reference to any servant or agent of his who was concerned with the contents of the publication.

(6) Paragraph (b) of subsection (1) of this section shall not apply in relation to the publication by any person of words of which he is not the author unless he proves that the words were written by the author without malice.

This provision has been adopted in New Zealand (Defamation Act, 1954, s. 6) except that the conditions to be satisfied where the author is other than the offeror of amends are more stringent and that the powers which in the United Kingdom Act are given to the High Court are given to the court in which any action in respect of the publication has been taken and, if no such action has been taken, to the Supreme Court (subsection (7)). Gatley (Libel and Slander 6 ed. 1967 Ch. 18) refers to only two cases interpreting the section, Solomon v. Simmons (The Times, April 10, 1954) and Ross v. Hopkinson (The Times, October 17, 1956) neither of which was considered to raise legal questions of sufficient importance to warrant publication in any professional series of reports. From the paucity of reports R.F.V. Heuston draws the tentative inference that here is a smooth running section. He says (The Irish Jurist, 1966 at 259):

There has been a remarkable paucity of cases on the interpretation of the section. The only case of significance is Ross v. Hopkinson, which lays down the awkward rule that the apology required by the offer of amends is quite distinct from any earlier apology. If, as is sometimes said, the happiest Acts of Parliament are those without any history, then Section 4 of the Defamation Act must take a high place in this category.

By contrast, Professor Street (Law of Torts 3 ed. 1963, 303-6) considers there are a large number of difficulties with the section. Expressions in the section about which he suggests difficulty or unfairness are "defamatory on the face" (In subsection 5(b), because this might apply to all cases where no innuendo had to be pleaded, but it seems to us fairly clearly to relate to the face the matter presented to the publisher) "did not know" (In subsection 5(a), because the apparent position in the end is that these words are equivalent to "did not know and ought not to have known" - but we think this is clearly implied) "servant or agent" (In subsection 5 - because of difficulty of determining who might be included in the context) "concerned with the contents of the publication" (In subsection 5 - because of doubts about whether e.g., typists, telephonists are included) and generally the words of s. 4(3). Professor Street also points out that the onus of proof of innocence of the defendant and all his servants and agents presumably rests on the defendant, that s. 4(3)(b) seems defective in applying to copies only and not originals, that it is not stated whether the defendant has to publish the apology when he makes his offer to the plaintiff (surely he does not) and that it is unfair to the plaintiff that he cannot postpone his decision whether to accept the offer until it has been determined in court proceedings whether the defendant is innocent or not. Lord Shawcross' Committee is likewise dissatisfied with the operation of the section as interpreted in Ross v. Hopkinson. Their report reads:

99. In Ross v. Hopkinson the defendants had made an offer of amends. Despite this, they were criticised by the judge for not having published an apology in any event as soon as the defamatory matter was drawn to their attention. It was thought that if the defendants are expected to publish an apology in any event as soon as they became aware of the defamatory matter, there seems little point in requiring them to publish a second apology when the offer of amends is accepted. The witnesses suggested that when an offer of amends is made, the court should have power to rule that an apology published before the offer constituted satisfaction of the requirement to offer to publish an apology made by s. 4.

The Committee adopted this suggestion (Report para. 121) but the Freedom of Publication Protection Bill introduced by a private member into the United Kingdom Parliament to give effect to a number of the recommendations of Lord Shawcross' committee did not include any clause to give effect to this one.

229. A feature of s. 4 of the Act of 1952, which has escaped comment by the authorities to which we have referred, is that in subsection 4(b) giving the court power to order the payment by the person making the offer to the party aggrieved of costs on an indemnity basis. It does not seem however that this would ordinarily be an appropriate measure of costs to be awarded against a defendant who is entirely innocent of blame as a defendant falling within the provisions of the present subsection would be. Moreover, it seems necessary to consider that among the representations made to us was that the expense to, for example, a small newspaper of costs even in actions arising out of accidental libels which do not come to trial but which are settled by negotiation can be onerous. Since this is just the situation the subsection contemplates - the situation where the offer is accepted - it does not seem to us right in effect to suggest that it might be appropriate to allow the prospective plaintiff to recover from the prospective defendant costs on the generous scale involved in the description " indemnity basis" (See Thomason v. Swan Hunter & Wigham Richardson Ltd. (1954) 1 W.L.R. 1220, 1226). That this should be possible was not the intention of Lord Porter's committee. We are disposed therefore to make general provision for power to dispose of the question of costs to include power to award the plaintiff's expenses arising out of the incident without any reference to the matter of the basis of the costs.

230. Having regard to the view expressed in the preceding subsection and to the need for adapting the reference to the High Court in the English Act to local circumstances we would expect to recommend drafting somewhat as follows for the corresponding subsection in the proposed New South Wales section to subsection (4) of the English section:

(4) Where an offer of amends under this section is accepted by the party aggrieved -

(a) any question as to the steps to be taken in fulfilment of the offer as so accepted may in default of agreement between the parties be referred by either party to and determined by the court in which any action in respect of the publication has been taken, and, if no such action has been taken, by a Judge of the Supreme Court or a District Court whose decision thereon shall be final;

(b) the power of the court to make orders as to costs in any action by the party aggrieved against the person making the offer in respect of the publication in question or in proceedings in respect of the offer under paragraph (a) of this subsection, shall include power to order the payment by the person making the offer to the party aggrieved of any expenses reasonably incurred or to be incurred by that party in consequence of the publication in question;


and if no such action or proceedings as aforesaid are taken, a judge of the Supreme Court or a District Court may, upon application made by the party aggrieved, make any such order for the payment of costs and expenses as aforesaid as could be made in such action or proceedings.

231. We have under consideration an amendment to subsection 3(b) along the following lines to deal with Professor Street's objection to its limited application:

(b) where a writing or record or examples or copies thereof containing the said words has or have been despatched circulated or distributed by or with the knowledge of the person making the offer, to take such steps as are reasonably practicable on his part for notifying recipients thereof that the words are alleged to be defamatory of the party aggrieved

233. We do not think it is possible to meet Professor Street's point that it is unfair to the plaintiff that he should not be allowed to reserve his decision whether to accept the apology until the question of innocence has been settled by litigation. It seems an essential part of the scheme proposed by Lord Porter's committee that the offer should have some prospect of being effective to forestall litigation. The committee says: "If a plaintiff, after accepting a correction and apology, were allowed to continue his action on the chance of establishing either an intention to defame or lack of reasonable care on the part of the defendant, our proposal would fail of its practical object" (Para. 66). We would think that this would apply also to permitting him to reserve his position.

234. We are disposed to think that the kind of issue raised by Lord Shawcross' committee in relation to Ross v. Hopkinson (Supra para. 228) is a machinery question which might conveniently be dealt with in the first instance by Rule in the proposed Second Schedule to the proposed Act and thereafter be open to amendment in the light of judicial experience. Such a course could also we think be followed to give the prospective defendant a clearer notion of his legal obligations when making such an offer even in the ordinary case where the matter was uncomplicated by the issue of an apology prior to the communication of the offer of amends. We suggest something along the following lines:

(1) An offer of amends under this Act shall contain the following -

(a) in cases where the offeror has not previously published a correction or apology or where he does not rely to any extent for the purposes of section [the section corresponding to the English s. 4] of this Act upon a previously published correction or apology, a specification of the steps proposed to be taken by way of amends and an offer to carry out such additions modifications or alternatives if any as may be reasonably required by the offeree;

(b) where the offeror has previously published a correction or apology and proposes no further steps by way of amends a specification of the steps taken and an offer to carry out such further steps, if any, which the offeree may reasonably require;

(c) where the offeror has previously published a correction or apology and proposes further steps by way of amends a specification of the steps taken and proposed to be taken and an offer to carry out such additions modifications or alternatives if any as may be reasonably required by the offeree.


(2) Without prejudice to the right of the offeree to negotiate for an offer with a different specification of steps to be taken from that originally received within a reasonable time, it is declared that the ultimate acceptance of an offer made in terms of the preceding sub-rule shall be in completely general terms.

We think that this rule would mean that the offer would in some respects have to be rather more specific than under the English Act and that this would assist the plaintiff in determining whether to accept it. The object of sub-rule (2) is to overcome any suggestion that the offeree is invited to specify alternative terms in his acceptance or that an acceptance of so vague an offer as is contemplated by sub-rule (1) in general terms would not be a valid acceptance if the ordinary principles of contract law were applied as being an agreement to make an agreement.

235. We would propose to follow the drafting alteration in the New Zealand legislation and substitute the words "action for defamation" for the words "proceedings for libel or slander" where they occur in subsection l(a) of s. 4 of the English Act, similarly in subsection l(b), as well as to substitute "any action" for "proceedings" where first occurring in subsection 4(b) and "action or proceedings" for "proceedings" where thirdly and fourthly occurring in the subsection.

CONSOLIDATION OF ACTIONS (SECTION 23)

236. By s. 23 "the court or a judge, upon an application by or on behalf of two or more defendants in actions in respect of the same, or substantially the same, defamatory matter brought by one and the same person, may make an order for the consolidation of the actions, so that they shall be tried together; and after the order has been made, and before the trial of the actions, the defendant in any new action instituted in respect of the same, or substantially the same, defamatory matter may be joined in a common action upon a joint application being made by that defendant and the defendants in the actions already consolidated". It is further provided that "in an action consolidated under this section, the jury shall assess the whole amount of the damages (if any) in one sum, but a separate verdict shall be given for or against each defendant in the same way as if the actions consolidated had been tried separately; and if the jury find a verdict against the defendant or defendants in more than one of the actions so consolidated, the jury shall proceed to apportion the amount of damages so found between and against the said lastmentioned defendants; and the judge at the trial, if the plaintiff is entitled to the costs of the action, shall make such order as he may deem just for the apportionment of those costs between and against those defendants". The predecessor of this provision in New South Wales was introduced by the Defamation Amendment Act of 1909 (No. 22 of 1909, s. 10) and was continued by the Defamation Act, 1912-1948 (No. 32 of 1912, s. 11). The provision in those Acts was generally identical with the (U.K.) Law of Libel Amendment Act, 1888, s. 5 except for a few drafting alterations and a substantive difference in that, whereas under the English provision the defendants in new actions "shall also be entitled" to be joined in a common action already instituted, in the New South Wales provision it was merely provided that such defendants "may" be joined. The provision in the 1958 Act resembles its predecessors in New South Wales in this respect, and thereby differs from the corresponding provision in the Queensland Defamation Law of 1889 (s. 23), which in this matter followed the English Act. On the other hand, the present New South Wales section resembles the Queensland provision, and differs from those formerly in force in England and formerly in New South Wales, in that it applies to all actions in respect of defamatory matter and is not restricted to actions for libel. By the Defamation Act, 1952 (U.K.) it is now provided that "Section five of the Law of Libel Amendment Act 1888 (which provides for the consolidation, on the application of the defendants, of two or more actions for libel by the same plaintiff) shall apply to actions for slander and to actions for slander of title, slander of goods or other malicious falsehood as it applies to actions for libel; and references in that section to the same, or substantially the same, libel shall be construed accordingly" (s. 13).

237. In general we are disposed to believe that the form and substance of the first paragraph of the present New South Wales section should continue unaltered. It seems more appropriate that the whole matter of joinders should be in the discretion of the court than that the matter should be generally one of discretion but subject to an "entitlement" in the case of a defendant in an action of the relevant sort begun after an order has been made in respect of other actions. We do not appreciate the special position of such a defendant which would account for this special right. The limitation to libel in the former English and New South Wales provision likewise appears to be without justification and the alteration in the English law followed the recommendation of Lord Porter's committee that the existing power of consolidation should apply to all actions for defamation and to "actions on the case in the nature of actions for defamation" (Cmd. 7536 para. 190). It will be seen from our quotation of s. 13 of the Act of 1952 in the preceding paragraph that the phrase just quoted has been translated into the English law in the form "actions for slander of title, slander of goods or other malicious falsehood". We see no reason why the power of consolidation should not be extended to cover these cases but are disposed to recommend that this be done by a general formula rather than a specification of the torts as in the English Act. Unfortunately the general formula in Lord Porter's committee's report may not be clear, as perhaps the English legislature's failure to adopt it indicates. We think the situation might be met by substituting for the words "the same, or substantially the same, defamatory matter” in both places where they occur in the present New South Wales section the words "the publication of the same, or substantially the same, defamatory or otherwise actionable matter". Whether this formula were adopted or the English one for this purpose, it would be necessary in order to avoid confusion or the frustration of the purpose of the provision, to exclude or amend the provision which constitutes s. 42(1) of the present Act, namely, that "except as provided in subsection two of this section, nothing in this Act applies to the actionable wrong commonly called 'slander of title' or to the misdemeanour of publishing a blasphemous, seditious or obscene libel". For the presently proposed recommendations in this respect see infra para. 264. As at present advised we are disposed to omit the second paragraph of the section. Bailey v. Willis ((1930) 30 S.R. 131) shows that where an order is made in actions against Joint tortfeasors the judgment against each will be for part only of the damage. This may have done as much justice as could be achieved in the days before the Law Reform (Miscellaneous Provisions) Act 1946 made contribution possible. But it does not seem reasonable to make provision at this stage for a departure from the ordinary principle that judgment be recovered for the full amount against each one, the defendants being left to take independent contribution proceedings against each other or to proceed by third party notices against one another in the actions consolidated.