Paragraphs 238 to 266

OTHER RECOVERIES IN MITIGATION (SECTION 24)

238. By s. 24 it is provided that "at the trial of an action for the publication of defamatory matter the defendant may give in evidence, in mitigation of damages, that the plaintiff has already recovered, or has brought actions for damages, or has received or agreed to receive compensation in respect of other publications of defamatory matter to the same purport or effect as the matter for the publication of which such action has been brought". The present section differs from the Queensland Act of 1889 in that it is not restricted to publication in periodicals and from the previous New South Wales law dating from the Defamation (Amendment) Act, 1909, s. 7 in not being restricted to libels. The English prototype legislation, the Law of Libel Amendment Act, 1888, s. 6 embodied both types of restrictions but both were abolished by the substitution for this section of s. 12 of the Defamation Act, 1952 (See Lord Porter's committee's recommendations, paras. 142-44). The law of New South Wales since 1958 on this topic is therefore in substance identical with the English law since 1952.

239. We have referred (Supra para. 14) to complaints about the difficulty of operation of this section. Apart from the necessity there mentioned to guard somehow against the jury treating a prior recovery simply as a precedent (as may have occurred in Lewis v. Daily Telegraph Ltd. (1964) A.C. 234) difficulties exist in determining how far it is proper to go into the circumstances of previous proceedings, such as the actual amount of damages awarded and the reasons. The House of Lords has settled that "the jury should be reminded that the plaintiff is not to be compensated twice; they should consider how far his loss is due to the libel with which they are concerned and how far to the joint result of the two libels" (R.F.V. Heuston in Irish Jurist, 1966 at 255 citing Lewis' Case, supra). They should probably be told that the evidence is not admitted for the purpose of fixing a scale of damages (Supra para. 18). In Uren v. John Fairfax & Sons Pty. Ltd. in the Full Court of the Supreme Court of New South Wales ((1965) 83 W.N. (Pt. 2) 183) Sir Leslie Herron eventually rejected the proposition that the jury was not entitled to know the amount of the verdict but only the existence of the claim; but he considered that it was "better to put the matter before the jury in general terms and not to make the difficult subject more complex still by attempting to speculate on possible considerations which could explain the first verdict" (Id. at 188). The remarks of Mr. Justice Walsh in the same case reinforce those of the Chief Justice, since he says that "I think it is no concern of the jury to embark on an inquiry as to whether the verdict may be set aside on appeal or as to whether it does or does not include an amount over and above compensatory damages" (Id. at 208) and that "a defendant does not, by means of s. 24, become entitled to institute a full investigation of the earlier action so as to show that he is less blameworthy than some other wrongdoer" (Id. at 209). Mr. Justice Wallace, as he then was, considered that even the disclosure of the amount of the verdict in the earlier case would lead the inquiry in the case before the court too far afield (Id. at 221) and similarly expressed doubts about the propriety of this course in Kornhauser v. John Fairfax & Sons Pty. Ltd. ((1964-5) N.S.W.R. 199 at 209).

240. In Uren v. John Fairfax & Sons Pty. Ltd. ((1965) 83 W.N. (Pt. 2) 183) Mr. Justice Walsh said that "it has to be kept in mind that the evidence under discussion is admitted pursuant to the statute and not in pursuance of a detailed set of principles worked out by the common law in a manner thought to be suitable to serve the interests of justice" (Id. at 208). He added that "it is right to give to the provision the effect which its language seems to require and to refuse either to extend its operation beyond that, or to confine it to less than that, because of arguments as to what is expedient, in order that the interests of the contending parties may be fairly balanced" (Ibid.) It appears nevertheless to us that the result on balance reached by their Honours on construction of the statute holds the balance between the contending parties. Any extension of the investigations permitted beyond what already appears to be allowable would, in our opinion, be unduly burdensome to the plaintiff in extending the field of inquiry beyond the circumstances in which he personally was involved. The defendant, after all, does not have to rely on the section and it is in his hands to bring it forward only where the lessons of the previous litigation can be simply drawn. No positive proposals for improvement of the section are before us (Section 13 of the Defamation Act, 1954 (N.Z.) appears to us to be the same in substance as our Act in spite of drafting alterations) and as at present advised we do not propose to make any recommendations for alteration.

DISCLOSING NAME OF AUTHOR (SECTION 25)

241. By s. 25 "the proprietor of a periodical may upon the written request of a person who has commenced an action in respect of defamatory matter contained in an article, letter, report or writing in the periodical supply to that person the name and address of the person who supplied the article, letter, report or writing to the periodical, and in default of compliance with the request the person who has commenced the action may apply to a judge of the Supreme Court who may if he sees fit, after hearing the proprietor, direct that the name and address be so supplied". The predecessor of this section was introduced as s. 11 of the Defamation (Amendment) Act, 1909 (N.S.W.) and continued as s. 12 of the Defamation Act, 1912. Originally the section applied to proprietors of newspapers, now since 1958 to proprietors of periodicals. It does not seem to have any counterpart either in English legislation or in the Queensland legislation from which the present New South Wales Act is largely derived.

242. "The history of the causes which brought about this change in legislation" was described as follows by Sir William Cullen, the then Chief Justice of New South Wales, in a case arising shortly after the introduction of the provision (Hollingsworth v. Hewitt (1911) 11 S.R. 334, affirmed 13 C.L.R. 20):

It is not a very great while ago since an eminent English judge expressed the opinion that it was the duty of a publisher to give up the name of the writer of an article reflecting upon any individual, and that if he refused to do so he put himself into the shoes of the writer, and was not entitled to any sympathy. The very next year the opinion was expressed by another English judge of great eminence that a newspaper proprietor was not under any obligation to give up the name, and that no blame could be attached to him if he refused to do so. When the power of the English Courts to order discoveries upon interrogatories was extended in subsequent years, the Court regarded the compulsory disclosure of the names of the writers of articles as a matter which required very strong grounds to support it, and in Hennessy v. Wright (24 Q.B.D. 445) the principle was laid down, and quoted in a later case of Plymouth Mutual Co-operative Society v. Traders' Publishing Association ((1906) 1 K.B. at 415), that the Court had recognised the existence of a general rule that inspection of such a document disclosing the name of the writer should not be given to the plaintiff in an action for libel (11 S.R. at 337-8).

Against this background Sir William inferred that the object of the first part of the section was to protect the newspaper proprietor against any complaint which the writer of the article himself might have, on the ground that the proprietor had been guilty of some breach of legal obligation in furnishing his name, and that he would be cleared of such legal liability if the name was given on the written request of the person who had commenced an action, and was affected by the matter complained of. The section, in the view of the Chief Justice, was not intended to be used for mere idle curiosity, or to obtain information that the writer desired should be concealed. "Its principle purpose was that the person aggrieved by the publication of matter in a newspaper, once he has given a guarantee of good faith by the commencement of proceedings, should not be debarred of his remedy, not against a newspaper proprietor, who might be a man of very small means, and who might have acted in good faith, but against an individual who might be a person of large means, and affected by the most bitter personal malice against him" (11 S.R. at 338-339). The practice of refusing to require discovery of the name of the author of material in defamation actions has continued in other jurisdictions (See the authorities cited in Gatley on Libel and Slander (6 ed. 1967) 37), though it is recognized to be a rule of practice in defamation actions not founded on any journalistic "privilege" (See McGuiness v. Attorney General of Victoria (1940) 63 C.L.R. 73).

243. Any attempt to return the position in New South Wales after sixty years to that prevailing elsewhere faces the fact that it has appeared appropriate to different distinguished judges to exercise the discretion given by the section to compel disclosure of the name of a writer. An order was made by Sir Philip Street in Godwin v. Coombes (35 W.N. 105) on the ground that the author was there a member of the public who preferred to conceal his identity and voluntarily selected the columns of two newspapers for the purpose of ensuring publicity for the statements complained of. An order was made on similar grounds by Sir John Harvey in Meyer v. Humphries ((33 W.N. 126) and by Sir William Owen in Goodhew v. David Bros, (1948) 65 W.N. 133). In the case of a writing by a member of the staff of a newspaper an order will generally be refused (Wells Organizations Pty. Ltd. v. Fitzgerald (1961) 79 W.N. 311). Despite the counter-indications from cases in which an order has been made there are considerations which favour the repeal of the section. The judges had to proceed on the assumption that there were circumstances appropriate for making an order so as to give effect to the legislation, and no doubt chose the situation where the making of such an order was either most appropriate or least inappropriate according to the point of view. But it may be thought unsatisfactory that almost as a matter of course a member of the public who feels he has something to say should be exposed to crippling litigation through an order being made where he uses a nom de plume and the columns of more than one newspaper. Even if the situation is privileged or there is an arguable case of truth and public benefit the terrors of litigation may well deter. Moreover the fact that the newspaper proprietor will feel bound to resist, even though on grounds of asserting a privilege which is accepted neither by the general public nor the law, seems a proper matter for consideration. At least one newspaper (Supra para. 55) urges that special privileges should be given to newspapers because of the burden which they bear. If we feel bound to refrain from recommending this on the ground that to treat different classes of defendants to such actions according to different rules would be to strip the blindfold from the eyes of justice, the same justice would seem to demand that the periodical owner is not discriminated against by being made to give away sources of defamatory matter which he has repeated when the ordinary citizen would not be compelled to do so - and this even though the obligation would seem less onerous to the ordinary citizen who is unaffected by the ideological considerations appealing to the periodical owner.

GENERAL CRIME OF DEFAMATION (SECTION 26)

244. By s. 26, under the heading "Criminal Proceedings" it is provided that "Any person who unlawfully publishes any defamatory matter concerning another is liable upon conviction on indictment, to imprisonment for any term not exceeding one year or a penalty of such amount as the court may award or both". The section concludes that "if the offender knows that the defamatory matter is false, he is liable, upon conviction on indictment, to imprisonment for any term not exceeding two years or a penalty of such amount as the court may award of both". This provision contains elements of the previous New South Wales law (ss. 14 and 15 of the Defamation Act, 1912-1948 which reproduce the substance of ss. 8 and 9 of the Act of 1847 (11 Vic. No. 13)) and also elements of ss. 25 and 27 of the Defamation Law of Queensland of 1889. The resemblance to a distinctive feature of the earlier New South Wales law lies in the provision for a pecuniary penalty of indefinite amount by contrast to the Queensland limitation to three hundred pounds, increasing to five hundred pounds where the defamatory matter is known to be false. The resemblances to distinctive features of the Queensland legislation lie in the formal change from the specification of "malicious" to "unlawful" publication (See the explanation of this in para. 123 supra) and the substantive change from specification of "defamatory libel" to "defamatory matter" so that slander as well as libel is made criminal. The argument for this change was not made by Sir Samuel Griffith for he simply stated in introducing the Queensland Bill that clauses 25 and 27 made no change in the law in Queensland (57 Queensland Parliamentary Debates 738).

245. We have referred (Supra para. 36) to the representation made to us by the Australian Society of Authors that criminal liability for defamation should be abolished. We are at present disposed to think that we ought to recommend that this representation should be acceded to. The criminal remedy is ancient and, since no mens rea need be proved for the establishment of the crime but only in respect of the penalty, could operate as an instrument of oppression if it were not for the protection provided by s. 33 that "a criminal prosecution cannot be commenced against any person for the unlawful publication of any defamatory matter without the order of a judge of the Supreme Court or of a District Court first had and obtained". This discretion is exercised, however, according to principles. It has been laid down that the test of criminality at common law was not, as once thought, confined to cases where a tendency to breach of the peace was involved R. v. Wicks (1936) 1 All E.R. 384) and this has been treated as relevant to whether the intervention of the criminal law should be permitted in an application under the Act (Shapowloff v. John Fairfax & Sons Ltd. (1966) 84 W.N. (Pt. 1) 546, 553). Mr. Justice Taylor has indicated the cases calling for intervention of the criminal law as follows:

Publication of defamatory matter may concern the public welfare and hence warrant the intervention of the criminal law, if there is a tendency for it to create a breach of the peace (See ex parte O'Connor; Re Wright (1930) 47 W.N. (N.S.W.) 194 Re Leong Wen Joe (1928) 45 W.N. (N.S.W.) 78). The public welfare may be involved where the language is of a vile, intemperate nature, so that the libel is appropriate for criminal proceedings; or where it is unfounded and intemperate abuse published and repeated by one who is a man of straw, and hence civil proceedings would be ineffective. Public welfare may be involved where the libel defames public men such as magistrates, Ministers of State, or high officers in the Public Service, in their offices, since it can tend to destroy confidence and respect for those responsible for government and good order (Id. at 553).

In our tentative opinion the fact that the criminal remedy is available in respect of attacks on the Government could make it oppressive in circumstances of crisis, and its existence renders insecure the function which the law should perform in assuring the liberty of the subject. The main argument for criminal liability seems to rest on the basis that the civil remedy is inadequate because the defendant may be a man of straw and not therefore worth suing in civil proceedings. In our view this argument may have been valid at one time but is not so now in view of the transformation of the law regarding the availability of the remedy of injunction, reviewed in the succeeding paragraph.

246. Before the Common Law Procedure Act, 1857 (20 Vict. No. 31 s. 47 now continued by the Common Law Procedure Act 1899-1968 s. 179) the general equitable principle applied that no injunction could be obtained to restrain defamation. This was put by Sir William Blackstone on the ground that equity was not a "censor morum" and that the principle of freedom of speech required that there should be no prior restraint upon publications even though they were of a kind which might subject the publisher to liability to an action after the event (4 Blackstone's Commentaries (4 ed. 1770) 151). The Common Law Procedure Act provision to which we have referred gave the power to the common law courts to restrain the repetition or continuance. of tortious acts, including defamation. This, however, was not realised until a group of cases established it at the close of the nineteenth century, dealing with the successor to the Common Law Procedure Act provision under the English Judicature Acts, which gave a similar power to all divisions of the High Court of Justice (See Quartz Hill Consolidated Gold Mining Co. v. Beale (1882) 20 Ch.D. 501 (C.A.); Hermann Long v. Bean (1884) 26 Ch.D. 306 (C.A.); Liverpool Household Stores Association v. Smith (1887) 37 Ch.D. 170 (C.A.); Coulson v. Coulson (1887) 3 T.L.R. 846 (C.A.); Salomons v Knight (1891) 2 Ch. 294 (C.A.); Bonnard v. Perryman (1891) 2 Ch. 269 (C A,); Monson v. Tussauds Ltd. (1894) 1 Q.B. 671 (C.A.)). It will be seen that these cases cover a period when the vitality of the criminal remedy was in decline and there has therefore not been a great deal of opportunity to reassess the importance of the arguments formerly advanced in favour of the necessity of keeping the criminal remedy in existence in the light of the new situation created by these cases. But it would seem that the injunction procedure would deal as effectively with the problem of the man of straw as criminal proceedings, since once the injunction was granted any repetition would result in imprisonment for contempt. Stocker v. McElhinney (No. 2) ((1961) 79 W.N. 541) appears to be a good example of the effectiveness of the injunction remedy, Mr. Justice Walsh in that case granting an interlocutory application, where he held there was a clear case, to restrain slander. At all events, it is a way of handling the problem of the man of straw without keeping in existence the criminal remedy with the dangers it involves for all times. In ordinary times it seems that its existence is mainly a trap for those who seek to rely on it as the history in New South Wales set out in the succeeding paragraph will serve to show.

247. In former times in England, as we have seen, the criminal prosecution for libel was the common resort of the private prosecutor (Supra para. 7). In New South Wales, however, he ran into difficulties at a comparatively early stage owing to the control which the information procedure used in this state gave to the Attorney General over the proceedings. In Regina v. Lang ((1859) 2 Legge 1133) although the Attorney General filed an information following upon the prosecutor obtaining the committal of the accused, the Attorney General refused to allow the prosecutor to be represented at the trial, saying that "the principle upon which public prosecutions were conducted here differed from that pursued in England" and "he would not suffer private parties to interfere in any case or upon any pretence" (At 1134). This was upheld by the Court. The prosecutor is thus exposed to an action for malicious prosecution as a result of proceedings, over which he loses control, terminating in favour of the accused. He is also liable to an action for malicious prosecution where the Attorney General refuses to file the information at all, as happened in Crowley v. Glissan ((1905) 2 C.L.R. 744). In that case the action for malicious prosecution in fact followed was unsuccessful after the case went to the High Court. In view of these difficulties it does not seem surprising that prosecutions do not in practice often arise in New South Wales and the carrying through of such a prosecution to a successful conclusion seems to be outside living memory. In Shapowloff v. John Fairfax & Sons Ltd. (Supra.), where leave to proceed was refused, Mr. Justice Taylor remarked (At 553):

It is not without significance that there are only three reported cases in this century in New South Wales of applications for leave. So far as I am aware there has only been one criminal prosecution in the last fifty years in this State. In Ex parte Narme; Re Leong Wen Joe ((1928) 45 W.N. (N.S.W.) 78) leave was given to prosecute the respondent Leong Wen Joe for criminal libel. He was indicted and acquitted by a jury. In the Australian Capital Territory under the New South Wales Defamation Act, 1912, which then applied, an accused was convicted of criminal libel in 1960 on the ex officio indictment of the federal Attorney General (84 W.N. (Pt. 1) at 553).

In these circumstances there are grounds for the belief that this crime with its failure to require any element of conscious wrongdoing, its completely indefinite pecuniary penalty, its availability to persons with political power and influence, its litigious hazards for all who may become involved in it, and the availability of alternative better regulated remedies such as the injunction to perform the function claimed for it, should be abolished. It would be necessary in this case as well as repealing the section to provide that the common law crime of criminal libel should not be preserved or revived by the repeal. This would not however affect the types of criminal libel which fall outside the ordinary law of libel and are preserved by s. 42 of the present Act (See infra para. 265). An argument against the abolition of criminal defamation may, however, be based on the proposal which we entertain for the abolition of exemplary damages (Infa paras. 267-271). There may be cases where considerations of profit or of spite may overwhelm the deterrent tendency of merely compensatory damages and costs, and where the remedy of injunction is inappropriate. There may be some who will think that the abolition of exemplary damages and the abolition of criminal would leave a gap open to oppressive exploitation by the powerful or spiteful man.

EXTORTION (SECTION 27)

248. By 27(1) it is provided that "any person who (a) publishes or threatens to publish any defamatory matter concerning another, or (b) directly or indirectly threatens to print or publish, or directly or indirectly proposes to abstain from printing or publishing, or directly or indirectly offers to prevent the printing or publishing of any matter or thing concerning another" with a certain intent is liable upon conviction on indictment, to imprisonment for any term not exceeding three years. The intent required is that "(i) to extort any money or security for money, or any valuable thing from that other person or from any other person, or (ii) to induce any person to confer upon or procure for any person any appointment or office of profit or trust". By subsection (2) "nothing in this section alters or affects any law in force immediately before the commencement of this Act in respect of the sending or delivery of threatening letters or writings”. This section, like the previous one, contains both elements deriving from the previous New South Wales law (Defamation Act, 1912-1948 s. 13 deriving from the Act of 1847, s. 7) and the Queensland Defamation Law of 1889, s. 32. Generally it follows the previous New South Wales law, with the exception that instead of being limited to libel it applies to any defamatory matter as does the Queensland section. Of the Queensland section Sir Samuel Griffith explains that "it is the present law and deals with libels or threatened libels to extort money" although it clearly goes beyond this in applying also to threatened slander (57 Queensland Parliamentary Debates (1889) 738).

249. Despite the lack of explanation of the innovation made in Queensland and copied in New South Wales, we are disposed to recommend no change in subsection (1) of this section. It requires a specific blackmailing intent, unlike the previous section, and the penalty is specified. A threat to slander appears to be as great an evil as a threat to libel since the coercion may be quite as great and the danger of falsification of the evidence for a prosecution is no greater in the case of a threat of slander than in a threat of libel since the threat need in neither case be in writing.

250. The saving in subsection (2) of the present section of the law "in respect of the sending or delivery of threatening letters or writings" has been continued since the Act of 1847. It is apparently a reference to the Act 10 & 11 Vic. c. 66 which is headed in Oliver's Statutes "Threatening Letters" and contains the provisions which are now ss. 101 and 102 of the Crimes Act, 1900 (the sections were amended by Act No. 31 1951 s. 10). The full title of the Act 10 & 11 Vic. c. 66 is "an Act for extending the Provisions of the Law respecting Threatening Letters and accusing Parties with a view to extort Money". What is now s. 102 goes beyond threatening letters and writings to other accusations and, since it is now no longer associated with the threatening letters provision in an Act which was apparently described generally though inaccurately in this way, it seems appropriate to make it clear that s. 102 is saved as well as s.101. We are disposed to recommend the addition to the subsection of the words "or in respect of accusations or threats with intent to extort property".

SUBSIDIARY CRIMINAL PROVISIONS (SECTIONS 28-34 and 37)

251. Sections 28-34 and s. 37 make various subsidiary provisions, in each case with respect to criminal proceedings involving the unlawful publication of defamatory matter. These all must relate to s. 2 6 rather than s. 27, since it is only s. 26 which specifies unlawfulness in connection with the offence. If therefore we were to recommend that s. 26 should be repealed and not replaced and that the common law should not be revived we would be involved in recommending the repeal of those provisions the only function of which is to regulate the proceedings for which s. 26 provides. We are disposed to make this recommendation.

252. In this case consideration would need to be given to the question whether any steps should be taken to preserve the constitutional principle which, though not enacted by s. 29, is generally regarded as associated with it. This section provides that "on the trial of a person charged with the unlawful publication of defamatory matter, the jury may give a general verdict of guilty or not guilty upon the whole matter in issue, in like manner as in other cases". This provision ultimately derives from the English Act 32 Geo. III c. 60, the Libel Act 1792, known as Fox's Libel Act. In Lang v. Willis ((1934) 52 C.L.R. 637) Mr. Justice Evatt said that "Fox's Act (which is in force in New South Wales), though relating in terms only to criminal cases, is regarded as presenting a substantial obstacle in the way of interfering with a finding for the defendant" (Id. at 670). This Commission, in its report on the application of Imperial Acts (L.R.C. 4), did not recommend the preservation of Fox's Act, pointing out (L.R.C. 4 at p. 117) that s. 1 was now represented by s. 29 of the Defamation Act, 1958. If s. 29 is repealed, the question arises whether any sacrifice of the liberty of the subject would be involved. There are, however, difficulties in the way of declaring a right in the jury to find a general verdict for the defendant in civil cases, for such a right could not be asserted in unqualified terms without altering the law. In Ryan v. Ross ((1916) 22 C.L.R. 1) it was laid down by the High Court that if words were necessarily defamatory and the jury returned a verdict for the defendant which no reasonable man could reach, a new trial might be ordered. Sir Edmund Barton said that the finding of a jury as to whether a publication was a libel was unquestionably subject to review by the courts and would be set aside if against evidence (Id. at 18). Since this rule, leading as it does only to a new trial, merely preserves the plaintiff's position against the caprice of a particular jury, we do not feel that it is desirable to make any general declaration of the jury's rights to protect the defendant which would overturn it. The repeal of s. 29, in the context of an abolition of the general criminal remedy, can, after all, scarcely give rise to any inference of a legislative intent to attack the spirit of Fox's Libel Act. We draw attention also the saving provision in s. 9(2)(c) of the Imperial Acts Application Bill which we have recommended (L.R.C. 4 at p. 146).

INNOCENT SELLERS (SECTIONS 35 and 36)

253. By s. 35 it is provided that "a person does not incur any liability as for defamation merely by selling (a) any number or part of a periodical unless he knows that the number or part contains defamatory matter, or that defamatory matter is habitually or frequently contained in that periodical, or (b) a book, pamphlet, print, or writing, or other thing not forming part of a periodical, although it contains defamatory matter, if at the time of the sale he does not know that the defamatory matter is contained therein". By s. 36 "an employer is not responsible as for the unlawful publication of defamatory matter merely by reason of the sale by his servant of a book, pamphlet, print or writing, or other thing, whether a periodical or not, containing the defamatory matter, unless it is proved that the employer authorised the sale, knowing that the book, pamphlet, print, writing or other thing, contained defamatory in the case of a number or part of a periodical, that defamatory matter was habitually or frequently contained in the periodical". These two sections represent the substance of ss. 34, 35 and 36 of the Defamation Law of Queensland of 1889 and are new to the statute law of New South Wales. Sir Samuel Griffith explained in introducing the Queensland legislation that these provisions were among those taken from the draft code of 1879 and "deal with the protection of publishers and sellers of books from actions for criminal libel" adding that "they are to protect these people from criminal responsibility, but a civil liability still remains" (57 Queensland Parliamentary Debates 738). Sir Samuel had earlier explained that a code of criminal laws was proposed in England in 1879 and submitted to the House of Commons, but it never went any further. Speaking more particularly of ss. 34 to 36 he said that "the 34th section protects ordinary newsvendors, and provides that persons who sell newspapers shall not be responsible, unless they knew that the papers they sold were defamatory" (Ibid.) “Clause 35" he said "protects persons who sell books innocently and clause 36 protects servants who simply sell publications in the ordinary course of their duty" (Ibid.).

254. The description of the bill in respect to the present provisions by Sir Samuel Griffith points to some alteration having been made to them before their final passage, for the provisions in the Act of 1889 as passed applied to civil and criminal liability and s. 36 protects not servants but employers, although the marginal note to the Queensland legislation reads "Protection of Servants". While the need for some protection of sellers against civil liability for defamation seems clear in view of the subsidiary part that they play in the dissemination of defamatory matter, the origin of these provisions in a draft criminal code may explain why, when they are adapted to deal both with civil and criminal liability, there is some departure from ordinary legal principles affecting the civil liability of a master for his servant. An employer is expected to make himself civilly responsible for the negligent acts of his servants in the course of their employment and even though the servant may have been negligent and involved his master in liability, there is a good deal of heartburning when the master has sought to recoup his losses on the servant's account by action against the servant (See Lister v. Romford Ice and Cold Storage Co. (1957) A.C. 555). Since the effect of s. 36 of the New South Wales Act may be to channel the action against the servant by preventing action against the employer, in respect of what might be little worse than an error of judgment in the course of his employment, or alternatively may lead to servants being used as "fronts" by unscrupulous employers, we are disposed to recommend the repeal of s. 36.

255. By contrast, s. 35 of the New South Wales Act appears to represent a good principle which is not wide enough in its operation. At common law a person who is not the author, publisher (in the lay sense) or printer, but has only taken a subordinate part in disseminating written matter, as by selling, distributing or handing on copies will not be liable if he did not know a book or paper contained a libel complained of, did not know it was of a character likely to contain a libel and was not negligent in failing to know (See, e.g., Emmens v. Pottle (1885) 16 Q.B.D. 354 and Vizetelly v. Mudie's Select Library Ltd. (1900) 2 Q.B. 170). The burden of showing absence of negligence is upon the defendant, and although the courts have laid down some protective principles, as by saying that it is not evidence of negligence that the defendant did not have the book read through (See Weldon v. Times Book Co. (1911) 28 T.L.R. 143) the meaning of the requirement of the absence of negligence beyond lack of knowledge of its defamatory character or the frequency of such in a periodical is left nebulous and disturbing to the security of dissemination of books and periodicals. We cannot see why librarians or persons who deliver books to others otherwise than by way of sale should be placed in an apparently worse position than sellers. We are therefore disposed to recommend the amendment of s. 35 by substituting the word "disseminating" for the word "selling" and the word "dissemination" for the word "sale". We should then propose to add a paragraph to the section to the effect that "Dissemination by a person for the purposes of this section means sale, or delivery otherwise than by way of sale, or permitting to be read, in each case by that person or someone for whom he is legally responsible, but does include participation in writing, printing, or a main or original publication”.

EVIDENCE (SECTIONS 38 and 39)

256. By s. 38 it is provided that "upon the trial of an action for unlawfully publishing defamatory matter that is contained in a book or periodical, the production of the book, or of a number or part of the periodical, containing a printed statement that it is printed or published by or for the defendant, shall be prima facie evidence of the publication of the book, or of the number or part of the periodical, by the defendant”. By s. 39 "Upon the trial of an action or prosecution for unlawfully publishing defamatory matter that is contained in a periodical, after evidence sufficient in the opinion of the court has been given of the publication by the defendant of the number or part of the periodical containing the matter complained of, other writings or prints purporting to be other numbers or parts of the same periodical previously or subsequently published, and containing a printed statement that they were published by or for the defendant, are admissible in evidence on either side, without further proof of publication of them". These provisions are virtually identical with ss. 38 and 39 of the Queensland Defamation Law of 1889 and are new to the statute law of New South Wales. Sir Samuel Griffith explained that the 38th section was not to his knowledge in force anywhere and had been suggested to him by a fellow member. He said nothing of 39 (57 Queensland Parliamentary Debates 738).

257. The usefulness of the above sections depends largely upon the fact that a number of provisions exists compelling the printing of certain information about the persons responsible for publications. These include s. 3(1) of the Printing Act, 1899-1934 requiring the name of the person who prints any paper or book which is intended to be published or dispersed to print his name and other information thereon in the manner laid down, s. 14(1) of the Newspapers Act, 1898 which requires that in some part of every newspaper there shall be printed the name and certain particulars of the printer and publisher, and section 23(1) of the Obscene and Indecent Publications Act, 1901-1955 which requires that after the first publication of the register under the Act any distributor printed matter as there defined shall not sell or distribute for sale any printed matter unless each separate article so sold or distributed is marked as prescribed with the name and address of the distributor. "Distributor" means under s. 20 the publisher in respect of printed published in New South Wales or otherwise the person primarily responsible for its distribution or sale in New South Wales (s. 20(1)). By s. 26 the marking of printed matter with the name and address is made evidence of the distributor and the distribution but only in regard to proceedings for an offence against the Act. We are disposed to consider that the wording of ss. 38 and 39 of the Defamation Act should be broadened so that the information made compulsory by these Acts should in all cases be available in defamation proceedings. We therefore have under consideration recommending that for the words "printed or published" in s. 38 there should be substituted the words "printed, published or distributed" and that for the word "published" where secondly occurring in s. 39 there should be substituted the words "printed, published or distributed".

258. Drafting alterations seem to be desirable to exclude the conception "unlawful" which is at present in the Act but which we have suggested might be excluded from its replacement (Supra paras. 117, 120) and for excluding the reference to prosecutions for unlawful publication of defamatory matter which we have suggested should perhaps be abolished (Supra paras. 244-47). We are therefore disposed to recommend that for the words in s. 38 "for unlawfully publishing defamatory matter" there should be substituted "for defamation in respect of matter" and for the words in s. 39 "or prosecution for unlawfully publishing defamatory matter" there should be substituted "for defamation in respect of matter".

STAYING PROCEEDINGS (SECTION 40)

259. By s. 40(1) if the defendant in any civil or criminal proceeding commenced or prosecuted in respect of the publication by the defendant, or his servants, of any report, paper, votes or proceedings of the Legislative Council or of the Legislative Assembly, brings before the court in which the proceeding is pending, or before any judge thereof, first giving twenty-four hours' notice of his intention to do so to the prosecutor or plaintiff in the proceeding, a certificate under the hand of the President or Clerk of the Legislative Council or the Speaker or Clerk of the Legislative Assembly, as the case may be, stating that the report, paper, votes, or proceedings, as the case may be, was or were published by the defendant, or by his servants, by or under the authority of the Council or Assembly, as the case may be, or of a committee thereof, together with an affidavit verifying the certificate, the court or judge shall immediately stay the proceeding, and the proceeding shall be deemed to be finally determined by virtue of this section. By subsection (2) "The Government Printer is deemed to publish the reports of the debates and proceedings in the Legislative Council by order or under the authority of that Council and to publish the reports of the debates and proceedings in the Legislative Assembly by order or under the authority of that Assembly". These provisions continue s. 26 of the Defamation Act, 1912-1948, the first subsection stemming from s. 7 of 13 Vict. No. 16 (and thence from s. 1 of the English Parliamentary Papers Act, 1840) and the second having been added by Act No. 4, 1940, s. 2. We do not propose to recommend any alteration to these provisions in spite of the reference to criminal proceedings and to a prosecutor, if only for the reason that the scope of the section is not limited to proceedings for defamation, to which our proposals for abolition of the main criminal remedy are confined.

260. By s. 40(3) "If the defendant in any civil or criminal proceeding commenced or prosecuted in respect of the publication of any copy of such report, paper, votes or proceedings as is or are referred to in subsection one of this section brings before the court in which the proceeding is pending, or before any judge thereof, at any stage of the proceeding the report, paper, votes, or proceedings, with an affidavit verifying the report, paper, votes or proceedings, and the correctness of the copy, the court or judge shall immediately stay the proceeding, and the proceeding shall be deemed to be finally determined by virtue of this section." This subsection continues s. 27 of the Defamation Act, 1912-1948 and derives originally from s. 8 of 13 Vict. No. 16 (and thence from s. 2 of the English Parliamentary Papers Act, 1840). We are disposed to think it desirable, while leaving this subsection untouched, to supplement it with a fourth subsection to complete the legislative scheme which sub-section (2) appears to us to leave incomplete. While in cases falling within subsection (3) no certificate from the House is necessary as seems appropriate in the case of a mere copy, the subsection does not appear to fit the case of circulation by others than the Government Printer of Government Printers' published reports. These, it would seem are not copies, but by virtue of subsection (2) originals. They are thus outside the section except where the Defendant is authorised by the House under subsection (1) or deemed authorised under (2). We are disposed to recommend as subsection (4) that "If any defendant in any civil or criminal proceeding commenced or prosecuted for or on account or in respect of the publication of any printed document constituting a Government Printer's report such as is referred to in subs. (2) or purporting to be such brings before the court or judge at any stage of the proceeding a printed document verified by affidavit to be that report or purporting report, the court or judge shall immediately stay such proceeding, and the same and every writ or process therein shall thereupon be finally put an end to, determined and superseded.”

DISQUALIFICATION OF NEWSPAPERS (SECTION 41)

261. By s. 41 it is provided that "notwithstanding the foregoing provisions of this Act a defendant in any proceeding, civil or criminal, shall not be able to avail himself of any of the benefits or advantages enacted by any of the provisions of sections twenty, twenty-one, twenty-two and thirty-four of this Act unless at the time of the publication complained of, if it is a printed article, all the provisions made by law for regulating the printing and publication of newspapers and papers of a like nature, or of the trade of printing generally, applicable to such a work as that in which the article is printed, have been complied with". By subsection (2) "any specified non-compliance with any provision so made by law is a good answer to any pleading under this Act" and by subsection (3) "the defendant is nevertheless bound by the other parts of this Act". The section stems from 11 Vict. No. 13 s. 15, which provided that the defendant should be entitled to none of the benefits of that Act if he should be in default. There is no corresponding provision in the Defamation Law of Queensland of 1889 from which much of the present legislation is derived.

262. We have referred to newspaper objection to this provision imposing a partial removal of the legal rights of newspapers in cases where any provision of the printing laws may have been overlooked (Supra. Para. 35). We are disposed to think the criticism justified and to recommend the repeal of the section. In the nineteenth century violators of law were frequently denied their legal rights by way of punishment under particular statutes or even under some interpretations of the Common law, but these rules are now generally condemned by enlightened opinion. The punishment imposed by a modified outlawry is so indefinite and arbitrary as to arouse an acute sense of injustice. We are inclined to believe that the present provision has to be regarded as in this class. It seems clearly distinguishable from common law doctrines affecting the legal rights inter se of those who are jointly engaged in serious crimes and from the doctrine applying to the law of defamation that a plaintiff may not claim for the damage he suffers to that part of his reputation which belongs to his carrying on of an unlawful activity where the illegality is the foundation of the claim (See Smiths Newspapers Pty. Ltd. v. Becker (1932) 47 C.L.R. 279 and Wilkinson v. Sporting Life Publications Ltd. (1933) 49 C.L.R. 365). It is likewise distinguishable from provisions requiring documents to be stamped before being admissible in evidence.

263. If the section should however be preserved it would seem desirable for its existing form to be preserved in order to preserve the value of the elucidation in Madden v. Armidale Newspaper Co. ((1964) 81 W.N. (Pt. 2) 317 (F.C.)). But in this case action might need to taken to correct what appears to be a slip in the drafting. The reference to s. 20 appears to be meaningless, since that section in its present form does not apply to matter intended to be read and it would be impossible for d printed article to lose the protection of the section.

SLANDER OF TITLE, BLASPHEMOUS LIBEL (SECTION 42)

264. By s. 42 it is provided that "except as provided in subsection two of this section, nothing in this Act applies to the wrong commonly called 'slander of title' or to the misdemeanour of publishing a blasphemous, seditious or obscene libel". This subsection is taken from s. 44 of the Queensland Defamation Law of 1889. In introducing this provision Sir Samuel Griffith explained that these two subjects, one called a “slander" and the other a "libel", would have nothing to do with defamation. He said that "slander of title" is an injury to property by depreciating a man's title to a particular piece of property by preventing him from disposing of it. It has, he added, nothing whatever to do with the law of defamation, nor has a blasphemous, seditious, or obscene libel anything to do with it. He concluded that in that connection the term libel really means a book (57 Queensland Parliamentary Debates (1889) 738).

265. Since there can be no legal argument that an action for slander of title is an action for defamation, it appears that there should be no need for this part of this provision except as an explanation to the layman to whom the term probably means nothing in any case. We have seen, however, that the existence of the reference to slander of title in the Act has given rise to some obscurity in determining the precise limits of the definition of defamatory matter (Supra para. 95). If the definition of defamatory matter is repealed as we have suggested the reference to slander of title will cease to be of possible significance in this regard and appears to be without function. It would, if allowed to remain, be necessary to save the section in which we have followed the English Act of 1952 in suggesting amending the law of slander of title in one respect in a manner similar to the law of defamation (Supra para. 237) and the section for which we make a suggestion in paragraph 265a. hereof. We make the suggestion however that this be rendered unnecessary by excising the words "to the actionable wrong commonly called 'slander of title' or" from the replacement to the present s. 42. We accept Sir Samuel Griffiths' proposition that the misdemeanour of blasphemous, seditious, or obscene libel is not properly regarded as libel or slander and do not consider it within our terms of reference to make any recommendations regarding this vast subject. We nevertheless are disposed to recommend retaining the reference to this matter in subsection (1) so that we may continue the provision on this subject in subsection (2), which happens to be in the Defamation Act, without any implication that anything else in the Act is applicable to this misdemeanour.

265a. We have referred (Supra para. 246) to the lack of warrant in the principles of equity, apart from statute, for the exercise of restraint over defamation by way of injunction. We have also pointed out that, when the power to restrain defamation was given by statute, it was to the common law jurisdiction and it was only to restrain the repetition or continuance of defamation (Ibid.) There is some authority for the view that the action for malicious non-defamatory words, of which slander of title is a sub-category, was likewise outside the scope of the powers of the equity court to grant an injunction apart from statute (Seeley v. Fischer (1841) 11 Sim. 581; Browne v. Freeman (1864) 4 New Rep. 476, 478; (1873) W.N. 178; Prudential Assurance Co. v. Knott (1875) L.R. 10 Ch. 142). Hence it would follow by parity of reasoning to the case of defamation that the only present power in New South Wales to grant an injunction to restrain these injurious falsehoods is in the common law jurisdiction and the tort must already have been committed before the proceedings to restrain continuance or repetition can be taken. This should strictly mean that special damage must be shown to have occurred, because it is only then that the tort is complete, and authority favours this view (White v. Mellin (1895) A.C. 154; Royal Baking Powder Co. v. Wright, Crossley & Co. Ltd. (1900) 18 R.P.C. 95). In England the rigidity of this limitation is tempered by the complex provision of s. 3 of the Defamation Act, 1952, making malicious falsehoods actionable, without special damage in certain cases selected by reference to the position of defamation itself in England in this regard. In New South Wales a somewhat similar function may be performed by the extension of the definition of defamatory matter in s. 5 of the Defamation Act, 1958 whereby some things which would otherwise be actionable only as malicious falsehoods become defamation and the special damage requirement for actionability at law and hence for the grant of an injunction by a common law court disappears (See the reference in Wheeler v. Grace. Bros. Pty. Ltd. (1967) 2 N.S.W.R. 730, 735, which was however an equity suit where this matter was not actually in issue.) The English s. 3 is obviously not suited for adoption in the different state of the law of defamation in New South Wales, and we incline to recommend the repeal of s. 5 of the Defamation Act, 1958 (Supra paras. 88-99). In these circumstances, to maintain flexibility in the conditions in which an injunction may be awarded, whether by a common law court under the present procedure in New South Wales or by courts with both common law and equitable jurisdiction if the pleading system were altered, we incline to recommend such a provision as the following:

In any proceeding to obtain an injunction to restrain a malicious falsehood it is declared that it shall be unnecessary for the applicant to demonstrate that the publication of the falsehood has led to special damage prior to the institution of the proceeding.

266. Subsection (2) provides that "it is not necessary to set out in an information, indictment, or criminal proceeding instituted against the publisher of an obscene or blasphemous libel the obscene or blasphemous passages; it is sufficient to deposit the book, newspaper or other document containing the alleged libel with the information, indictment, or criminal proceeding, together with particulars showing precisely by reference to pages, columns, and lines in what part of the book, newspaper, or other document, the alleged libel is to be found; and those particulars shall be deemed to form part of the record, and all proceedings may be taken thereon as though the passages complained of had been set out in the information, indictment or proceeding". This subsection continues s. 16 of the Defamation Act, 1912-1948 with merely drafting alterations. We are disposed to recommend its continuance in order to preserve the law in statu quo on a matter not referred to us.