Bishop v State of New South Wales

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST DUNFORD J Wednesday, 8 NOVEMBER 2000 20992/97 NOEL BISHOP v STATE OF NEW SOUTH WALES JUDGMENT 1 HIS HONOUR: The plaintiff, Noel Bishop, has sued the defendant alleging that he was defamed in a revue type skit performed by Year 12 school boys at the Farrer Memorial Agricultural High School near Tamworth, a school conducted by the defendant's Department of School Education. 2 The Statement of Claim alleges that this skit, which I shall hereinafter refer to as "the performance", was performed on 16 October 1997, the last day of the school year for Year 12 students, before a body of students, teachers and other staff. It consisted of several sketches and the one in question is alleged to have featured two of the students, one representing the plaintiff, and the other representing another teacher, Mrs Gill, and the students playing the respective parts were introduced as representing those teachers by the compere of the show, who was a vice captain of the school. 3 It is alleged that the two students walked hand in hand up on to the stage where they put their arms about each other and pretended to engage in sexual acts such as groping, kissing, spanking, oral sex and sexual intercourse. No member of the teaching staff had any imput into the scripting, preparation or presentation of the performance. 4 The plaintiff's case is that this performance conveyed to those present in the auditorium the imputations: (a) that he engaged in lewd sexual activities with another teacher; and (b), that he had an adulterous relationship with another teacher. 5 This is the trial with a jury of the issues set out in s 7A(3) of the Defamation Act 1974 and there is a real issue under subs (4) as to whether the material relied on was published by a person or persons for whom the State of New South Wales, as represented by the Department of School Education, is liable. 6 At the close of the evidence counsel for the defendant has submitted that the matter should be taken from the jury and I should direct the entry of judgment for the defendant on the ground that there was no publication by any person for whom the defendant is liable. Subject to that issue, I have also heard submissions on the questions which should be put to the jury for their deliberation. 7 The researches of neither counsel nor myself have been able to find any case similar to the present where the authorities responsible for a school have been held liable for the defamatory imputations allegedly conveyed by students, or anything remotely resembling such a situation; and it is therefore necessary to resort to first principles bearing in mind that the students are neither agents nor servants of the school so that principles of vicarious liability relating to principals and agents or masters and servants are not applicable. 8 The general principle is that liability for publication of a defamatory matter extends to all who take part in the commission of the tort: Australian Defamation Practice at para [5170]. In Webb v Bloch (1928) 41 CLR 331 at 364, Isaacs J cited with approval a number of descriptions of publication from judgments and text writers, including one from Starkie on the Law of Libel and Slander, 2nd ed. as follows: "All who are in any degree accessory to the publication of a libel and by any means whatever conduced to the publication, are to be considered as principals in the act of publication."

and he also referred to the judgment in R v Paine (1696) 5 Mod 163 at 167: "If one repeat and another write a libel, and a third approve what is wrote, they are all makers of it; for all persons who concur and show their assent or approbation to do an unlawful act, are guilty." 9 Gatley on Libel and Slander, 9th ed. at para [6.2] states that at common law, liability for publication "extends to any person who participated in, secured or authorised the publication", and in what is probably the closest scenario analogous to the present case, at para [6.16] states: "The author, director and actors as well as perhaps the managers of the theatre would also be joint publishers in the case of a live performance of a play, though it is thought that only the actor would be liable for an unauthorised adlib remark",

but although probably correct, this is only the opinion of the author who cites no authority for the proposition; and unlike the teaching staff here, the director and theatre managers are not only actively involved in preparation, rehearsal and production of the play, but also have prior knowledge of the text (except of course for the unauthorised adlib remark). 10 In Seary v Molomby (unreported - 23 August 1999), Sully J on the authority of Thiess v TCN Channel 9 Ltd (No. 5) [1996] 1 Qd R 156 accepted that some form of proximate control over the relevant publication is essential to liability, and quoted with approval a statement from Professor R E Brown in the Law of Defamation in Canada, 2nd ed., vol 1 at 348 as follows: "Where a person affirms or ratifies the defamatory act of another, he is liable for that publication as though he originally undertook to publish it himself."

11 None of these cases or authorities deal with a situation similar to the present and accordingly counsel for the plaintiff has directed my attention to what might be described as the "poster cases", such as Byrne v Deane [1937] 1 KB 818 and Urbanchich v Drummoyne Municipal Council (1991) A Torts R 81-127. 12 Byrne v Deane involved a notice displayed on the notice board of a golf club and, although it was ultimately held not to be defamatory of the plaintiff, one of the issues was the liability of the proprietor and secretary of the club. Greer LJ said of the secretary at 829: "By allowing the lampoon to remain upon the wall when she had not consented to its being put up, and therefore could have taken it down, she was a consenting party to the defamatory statement, if it was defamatory, remaining on the wall of the club."

Slesser LJ at 835 said: "I think having read it, and having dominion over the walls of the club, as far as the posting of notices was concerned, it could properly be said that there was some evidence that she did promote and associate herself with the continuance of the publication in circumstances after the date when she knew that the publication had been made."

While Green LJ at 838 posed the test as being: "Having regard to all the facts of the case is the proper inference that by not removing the defamatory matter the defendant really made himself responsible for its continued presence in the place where it had been put?"

In that case there had been no complaint made by the plaintiff to the club officials about the presence of the notice and no request for its removal. 13 Urbanchich v Drummoyne Municipal Council concerned a number of posters alleged to be defamatory of the plaintiff which were posted on bus shelters under the control of one of the defendants. The plaintiff drew the defendant's attention to the posters and asked that they be removed, but this was not done. There was no evidence that any servant or agent of the defendant was responsible for the presence of the posters on the shelters. 14 Hunt J referred to what had been said in Webb v Bloch and R v Paine and at 69,193(1) summarised his conclusions as follows: "According to the authorities the plaintiff must establish that the defendant consented to, or approved of, or adopted, or promoted, or in some way ratified, the continued presence of that statement on his property so that persons other than the plaintiff may continue to read it - in other words, the plaintiff must establish in one way or another an acceptance by the defendant of a responsibility for the continued publication of that statement. Such conduct on the part of the defendant may of course be established by inference. Indeed, in most cases there will be no evidence of any such acceptance by the defendant expressly, and it can only be established by inference."

With respect to his Honour I accept that as a correct statement of principle. It accommodates the concept of "proximate control" referred to by Sully J and the concepts of "assent" and "approbation" referred to in R v Paine , and approved by Isaacs J in Webb v Bloch . 15 Hunt J then went on at 69,193(2) to reject the concept of "negligent publication" which had been referred to in the American case of Hellar v Bianco (1952) 244 P2d 757. 16 In Urbanchich his Honour held that proof that the relevant defendant: (1) had been notified of the existence of the posters and of the plaintiff's complaint concerning their contents, (2) had been requested to remove the posters, (3) had the ability to remove those posters or obliterate their contents, and (4) had failed within a reasonable period to do so was capable of amounting to the publication by such defendant of those posters, provided that the jury also drew the inference from such conduct that the second defendant had in fact accepted a responsibility for the continued publication of those posters. 17 Counsel for the plaintiff submitted that the same principles should be applied in this case and that, if the jury were to find that the performance consisted of the actions and gestures described by the plaintiff's witnesses, and were satisfied such actions and gestures were seen by the headmaster, he was under a duty to stop the performance if he could, and his failure to do so amounted to adopting the defamatory content contained therein, or to put it another way, he became a co-publisher and therefore liable, and hence the defendant as his employer is liable. 18 He referred me in particular to the evidence of the headmaster that if he had seen what the plaintiff alleged he would have stopped it straight away, and that he would have been under a duty to do so. 19 I am not satisfied that the test is as suggested by the plaintiff. This is not a negligence action and, as Hunt J has pointed out, Australian law recognises no concept of publication by a negligent act. What must be shown is that the school authorities, and in practical terms that means the headmaster, consented to, approved of or adopted the continuance of the performance, or to put it another way, accepted a responsibility for its continuance. 20 I am further satisfied that as there is no evidence of oral or written material - the compere says he read out a rhythmic poem but cannot recall what was in it - the case is dealing with what was virtually a mime show, and because of the transient nature of the performance compared with the posters cases, I am further satisfied that the tests formulated by Hunt J need some modification in order to give effect to the principles indicated by his Honour which I have quoted. 21 I am, therefore, satisfied that it must be shown at some stage the headmaster became aware of the acts and gestures which conveyed the imputations alleged. Because of the transient nature of the performance, there is no room for the requirement of a complaint or request for removal (and I have already observed there was no complaint or request for removal in Byrne v Deane). The plaintiff must show the headmaster had the opportunity and ability to terminate the performance and must show that he failed to do so. Because of the transient nature of the performance there is no question of a reasonable time to stop it, but it must be shown that he had the ability and opportunity to terminate it before its natural conclusion. The jury must also draw the inference that in acting or failing to act as he did the headmaster in fact accepted responsibility for the continuation of the performance. But this concept of acceptance of responsibility could lead to confusion on the part of the jury and it seems to me preferable to put the issue to them in the alternative terms referred to by Hunt J at p 69,193(1), namely, whether he consented to, approved of or adopted the continuance of the performance. 22 Having regard to the whole of the evidence I am satisfied that there is evidence from which it would be open to the jury to be so satisfied and accordingly I refuse the defendant's application to take the proceedings from the jury, and I will direct them along the lines I have indicated. 23 Having regard to s 7A(4) which requires the jury to determine whether the matter complained of was published by the defendant, I consider that the only question the jury should be asked on this issue is, "Has the plaintiff established that the performance was published by the Department of School Education?" 24 However, because of the various steps involved in determining that issue, I consider it desirable to furnish them with written directions pursuant to s 55C of the Jury Act 1977 in the form of a note setting out the steps I have indicated above. 25 The written direction is to this effect: "You can only answer 'yes' to Question 6 if you are satisfied of ALL of the following: 1. That at some stage before its conclusion the headmaster became aware of the acts and gestures which conveyed the imputations found by you. 2. That at some stage before its conclusion the headmaster had the ability and reasonable opportunity to stop the performance. 3. That he did not do so. 4. That by not doing so he consented to, authorised, approved of, adopted or acquiesced in the contents of the performance."

26 Counsel for the defendant has also asked me to direct questions to the jury as to whether it finds specific acts or gestures established, eg groping, kissing, oral sex, etc in case any question should arise in the Court of Appeal as to whether the acts found proved could convey the particular imputations alleged. I reject such application. If a particular imputation is found the issue for the Court of Appeal could only be whether, on the whole of the evidence, it was open to the jury to be satisfied such imputation was conveyed, and any evidence from any witness (not obviously incredible) would, as I understand it, be sufficient for this purpose. In other words, the question would be whether there was evidence of acts or gestures capable of conveying the imputations, not whether particular acts or gestures were established. 27 But there is another reason for refusing the request. The jury must agree unanimously on their answers but may rely on different parts of the evidence to reach those answers. One juror may find an imputation conveyed by one gesture, whilst another may not be satisfied that such gesture occurred, but may be satisfied that the imputation was conveyed by a different gesture. The proposed series of questions are therefore not only unnecessary and irrelevant, but are likely to promote disagreement. oOo

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