135 CLR 321
Davis v Nationwide News Pty Ltd [2008] NSWSC 699
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Catchwords
135 CLR 321
Davis v Nationwide News Pty Ltd [2008] NSWSC 699
Judgment (2 paragraphs)
[1]
Judgment
HER HONOUR: Dr Christopher Daniels brought an action for defamation arising out of the publication of a report as to his teaching prepared by the principal at a school at which he taught. The report was required to be completed by the principal for submission to the Department of Education. Accordingly, qualified privilege was an obvious issue. The defendants relied upon the defences of qualified privilege both at common law and under s 30 of the Defamation Act 2005 (NSW).
The trial of the claim commenced on Monday, 7 September 2015, before me with a jury. On the third day of the trial, the proceedings were resolved by agreement and the jury was discharged.
During the course of the trial, an issue arose as to the questions for the jury concerning the statutory qualified privilege defence. The resolution of the proceedings came before the point at which the questions for the jury were put to them. I nonetheless determined that it would be appropriate to publish my reasons for the conclusion I had reached. This judgment addresses that issue.
The issue that arose during the trial was whether, for the purpose of the statutory qualified privilege defence, the element of the defence stated in s 30(1)(c) of the Act (whether the conduct of the publisher in publishing the allegedly defamatory matter was reasonable in the circumstances) should be determined by the jury.
In Davis v Nationwide News [2008] NSWSC 699; 71 NSWLR 606, McClellan CJ at CL (as his Honour then was) expressed the view that that was an issue for the judge, not the jury. The judgment is succinct and may conveniently be set out in full:
1 In the course of these proceedings the question arose as to whether it was for the judge or the jury to determine the issue of reasonableness for the purpose of s 30(1)(c) of the Defamation Act 2005. It was accepted by the parties that any issues of disputed fact were required to be resolved by the jury. But they were at issue as to whether the ultimate question was for determination by the judge. The plaintiff submitted that it was but the defendant took the contrary position.
2 The Defamation Act 2005 provides in s 6(1) that the "Act relates to the tort of defamation at general law." Subsection (2) provides that:
"This Act does not affect the operation of the general law in relation to the tort of defamation except to the extent that this Act provides otherwise (whether expressly or by necessary implication)."
3 Section 22 of the Act provides that where defamation proceedings are tried by jury, "the jury is to determine whether the defendant has published defamatory matter about the plaintiff and, if so, whether any defence raised by the defendant has been established."
4 This provision could be understood as requiring any issue relevant to the defence of qualified privilege to be determined by the jury. However, subsection (5) is in the following terms:
"Nothing in this section:
(a) affects any law or practice relating to special verdicts, or
(b) requires or permits a jury to determine any issue that, at general law, is an issue to be determined by the judicial officer."
5 At general law the question of reasonableness of the conduct of the defendant for the purpose of the defence of qualified privilege was a matter for the judge: see Glass JA in Austin v Mirror Newspapers Ltd [1984] 2 NSWLR 383 at 387 (see also Barbaro v Amalgamated Television Services Pty Ltd (1989) 20 NSWLR 493, Hanrahan v Ainsworth (1990) 22 NSWLR 73). The position was maintained by the Defamation Act 1974 (see Morgan v John Fairfax & Sons Ltd (1990) 20 NSWLR 511) where s 23 of the Act provided that the defence of qualified privilege was to be determined by the court and not by the jury. A provision similar to s 23 was not enacted in the 2005 Act. No doubt because uniform legislation was being provided (and the 1974 Act was particular to New South Wales), all that was thought necessary to preserve the position at general law in the 2005 Act was the inclusion of s 22(5)(b).
6 In these circumstances, there being no indication to the contrary in the legislation, I ruled that the judge was required to determine the question arising under s 30(1)(c) of the Act. As it happens the jury found that the publication of the defamatory matter was actuated by malice. Accordingly, it was unnecessary for me to determine the issue of reasonableness - the finding of malice operates to defeat the defence of qualified privilege (s 30(4)). Nevertheless, given the significance of the issue in these proceedings it is appropriate that I publish these reasons.
The rationale for his Honour's conclusion was the fact that s 22(5) of the 2005 Act preserves the general law as to issues that are required to be determined by the judge. The proposition recorded at [5] of the judgment (that at general law, "the question of reasonableness of the conduct of the defendant for the purpose of the defence of qualified privilege" was such an issue) was accordingly a critical premise of his Honour's conclusion. I would respectfully doubt the correctness of that premise. At the very least, it may be doubted, in my respectful opinion, whether the authorities cited for that proposition in fact support it.
One can begin with the proposition (for which it might be thought no authority is needed) that, at common law, in a trial with a jury, questions of fact are to be determined by the jury.
The question identified by McClellan CJ at CL in Davis ("the question of reasonableness of the conduct of the defendant") is an express element of the current statutory defence of qualified privilege but it is not an element of the defence at common law.
It appears to have been accepted long ago (at least by reference to the timeline of the general law of Australia, which is relatively young) that, although disputed facts are for the jury to determine, the "ultimate issue" for the defence at common law (that is, whether the matter complained of was published on an occasion of qualified privilege) is a question of law and so one to be determined by the judge. But, if the facts are in dispute, they must be resolved by the jury before the judge considers whether the occasion was privileged: Telegraph Newspaper Company Ltd v Bedford [1934] HCA 15; 50 CLR 632 at 646 per Starke J; at 657 per Evatt J (with whom Rich J and McTiernan J agreed at 643 and 664 respectively).
Bedford was concerned with the application of the common law approach to a statutory defence under the Criminal Code (Qld) (63 Vict No 9). Importantly, reasonableness of the conduct of the defendant was not an express element of that defence. Further, the Code did not address the respective functions of judge and jury.
The relevant provisions were ss 377(3) and 377(5) of the Code, which provided (as set out at 650 of the reported judgment):
"it is a lawful excuse for the publication of defamatory matter …
(3) If the publication is made in good faith for … the public good …
(5) If the publication is made in good faith 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.
Reasoning from the common law approach, Starke J considered that the issue of good faith was a matter of fact for the jury but that the determination whether the publication related to a matter affecting the public good must be made by the judge (at 647.6).
Justice Evatt, with whom Rich and McTiernan JJ agreed, similarly concluded that the question posed by the statute (whether the publication of defamatory matter can be excused as a publication "for the public good") was a question that should be determined by the judge: at 658.3. That conclusion was reached by parity of reasoning with the common law principle that the question "whether an occasion be privileged or not" is a question for the judge (at 657, citing Greer LJ in Watt v Longsdon (1930) 1 KB at 153). However, the basis for the conclusion appears to have been not that the question whether a publication was for the public good is a question of law but that it involves a normative judgment (or "a question of extreme delicacy", as it was described at 657.4) more appropriately reserved to the court.
The application of the common law approach to a later version of the statutory defence was considered by the High Court in Calwell v Ipec Australia Ltd [1975] HCA 47; 135 CLR 321. The Court was there concerned with the respective functions of judge and jury in the determination of the defence of qualified privilege under s 17 of the Defamation Act 1958 (NSW). As with the Queensland Code, reasonableness of the conduct of the defendant was not an express element of the defence and the Act did not expressly address the respective functions of judge and jury.
The relevant provisions of s 17 (set out in the judgment of Mason J at 328; [7]) were:
"It is a lawful excuse for the publication of defamatorymatter if the publication is made in good faith -
(c) for the protection of the interests of the person makingthe publication, or of some other person, or for thepublic good;
(e) for the purpose of giving information to the person towhom it is made with respect to some subject as towhich that person has, or is believed, on reasonablegrounds, by the person making the publication to have,such an interest in knowing the truth as to make hisconduct in making the publication reasonable underthe circumstances;
(h) in the course of, or for the purposes of, the discussionof some subject of public interest, the public discussionof which is for the public benefit and if, so far as thedefamatory matter consists of comment, the commentis fair.
For the purposes of this section, a publication is said to bemade in good faith if the matter published is relevant to thematters the existence of which may excuse the publication ingood faith of defamatory matter; if the manner and extentof the publication do not exceed what is reasonably sufficientfor the occasion; and if the person by whom it is made is notactuated by ill-will to the person defamed, or by any otherimproper motive, and does not believe the defamatory matterto be untrue."
The main judgment was given by Mason J, with whom all other members of the Court agreed (Barwick CJ and Gibbs, Stephen and Jacobs JJ). Justice Mason noted (citing Watt v Longsdon and Bedford) that, at common law, it was "well accepted that the question whether an occasion is the subject of qualified privilege or not is for the judge to determine as a matter of law, it being for the jury to determine any disputed issues of fact on the resolution of which the ultimate question of law may depend". His Honour further noted that, conversely, the issue of good faith is an issue of fact for the jury.
Justice Mason continued (at 329):
However, apart from s 18 and s 19 which provides that the question whether defamatory matter is relevant to any other matter and the question whether the public discussion of any subject is for the public benefit, are questions of fact, the Act contains no provision defining the respective roles of judge and jury in relation to defences of qualified privilege. The absence of a provision of this kind led four members of this Court in Bedford's Case to conclude that it was for the judge to determine whether an occasion was privileged under s 377(3) of the Code (the counterpart of s 17(c)) (1934) 50 CLR, at pp 647, 658. This conclusion was based on the analogous approach made by the common law to the problem and to the recognition by the courts that the question whether an occasion is privileged is one which involves important considerations of public and social policy traditionally refined and determined by the judge. Although the observations of Starke and Evatt JJ were more evidently directed to s. 377(3), in my view they applied as well to s 377(5) - the counterpart of s. 17(e).
Those remarks suggest that the rationale for the conclusion that, absent express provision, the judge should decide whether the elements of s 17 were satisfied was that those elements involved "important considerations of public and social policy traditionally refined and determined by the judge".
I turn then to McClellan CJ at CL's statement that "at general law the question of reasonableness of the conduct of the defendant for the purpose of the defence of qualified privilege was a matter for the judge". The authority cited for that proposition was the judgement of Glass JA in Austin v Mirror Newspapers Ltd [1984] 2 NSWLR 383 at 387. That decision was concerned with the statutory defence under s 22 of the Defamation Act 1974 (NSW). The statutory defence introduced by that section required the publisher to prove that his conduct in publishing the matter complained of was reasonable in the circumstances. As already noted, that is not a requirement of the defence at common law. Further, the Act expressly addressed the respective functions of judge and jury.
In the passage cited by McClellan CJ at CL, Glass JA said at 387F to 388A:
The first question raised on the appeal is directed to the respective functions of judge and jury in relation to this defence. Before any statutory intrusion into the common law of defamation occurred, it was well accepted that the question whether an occasion was privilege was to be decided by the trial judge, but he was required to remit to the jury the decision of any disputed question of primary fact upon which his own decision depended: Minter v Priest [1930] AC 558 at 572 and Telegraph Newspaper Co Ltd v Bedford (1934) 50 CLR 632 at 646. When the Defamation Act 1958, s 17, introduced a defence of qualified protection, it was held to be a question for the judge to determine whether the conditions prescribed by the various paragraphs were fulfilled subject to the jury deciding any disputed issues of fact on which the resolution of the ultimate questions might depend: Calwell v Ipec Australia Ltd (1975) 135 CLR 321 per Mason J at 331; Bridges v Australian Consolidated Press Ltd (1967) 70 SR (NSW) 52; 86 WN (Pt 2) 392
The defence under s 22 is even more closely integrated with the common law than a s 17 defence under the repealed Act since it is provided that the establishment of the defence demonstrates an occasion of privilege ranking equally with proof of a privileged occasion at common law (s 20(1)). Accordingly I am satisfied that the trial of a defence under s 22 calls for the same division of function between judge and jury.
Importantly, the "same division of function between judge and jury" that applied in respect of s 17 of the Defamation Act 1958 (considered in Calwell) did not entail the element of reasonableness later introduced in s 22 of the 1974 Act (replicated in s 30(1)(c) of the 2005 Act). The only reference to reasonableness in the 1958 Act was in s 17(e) of the Act, an element of which was whether the purpose of the publication was to give information to the recipient with respect to some subject as to which that person had (or was believed on reasonable grounds to have) "such an interest in knowing the truth as to make [the publisher's] conduct in making the publication reasonable under the circumstances". The issue of reasonableness under that element was informed exclusively by the nature of the interest of the recipient in knowing the truth. That was an issue closely related to the issue considered appropriate for determination by the judge under the defence at common law.
A further important point to note in respect of the remarks of Glass JA set out above is that, in Austin, no disputed questions of fact were submitted for determination by the jury. Counsel for the defendant, Mr Nicholas QC (who was later to become the defamation list judge) stated that the parties had abstained from putting any questions to the jury, electing to have the judge determine all primary facts. That approach no doubt reflected the complexity and awkwardness of teasing out for the jury all of the questions of fact upon which the judge might wish to rely in determining whether the elements of the defence were satisfied. In the proceedings on appeal, the parties again indicated their preference to have the Court determine whether the defence had been established "paying due regard to the jury's findings but deciding all other primary facts for itself" (at 388G).
For those reasons, I would respectfully doubt the correctness of the statement in Davis that Austin is authority for the proposition that, at general law, the question of reasonableness of the conduct of the defendant was a matter for the judge. Further, as already noted, the 1974 Act expressly addressed the respective functions of judge and jury. Section 23 of that Act provided:
Where proceedings for defamation are tried before a jury and, on the facts, there is a question whether there is a defence of qualified privilege under this division, that question is to be determined by the court and not by the jury.
It is necessary, however, to consider the two additional authorities cited in Davis. The first is Barbaro v Amalgamated Television Services Pty Ltd (1990) 20 NSWLR 493. In that case, the Court of Appeal expressly held that the question whether a publisher's conduct in publishing matter was "reasonable in the circumstances" within the meaning of s 22(1)(c) of the 1974 Act was to be determined by the trial judge and not by the jury "but subject to the jury deciding any disputed issues of fact on which the resolution of the ultimate questions might depend": at 496G to 498B per Samuels JA; Hope AP and Priestley JA agreeing.
Two things may be noted about that decision. The first is that it was determined in the context that s 23 expressly reserved the determination of the qualified privilege defence to the judge. That said, it may be accepted that, applying the traditional distinction formulated at common law and adapted to the various statutory defences as discussed above, the Court in Barbaro plainly considered that the statutory element of reasonableness is not a question for the jury. The second observation I would make, however, is that the authority cited by Samuels JA for that proposition (at 497G to 498A) is the judgment of Mason J in Calwell to which I have already referred. In Calwell, however, the statutory defence with which the Court was concerned did not contain the element of reasonableness contained in s 22(1)(c) of the 1974 Act (now contained in s 30(1)(c) of the 2005 Act).
The second additional authority cited in Davis is Hanrahan v Ainsworth (1990) 22 NSWLR 73. That case was decided in the same legislative context as Austin and Barbaro; namely, where the Act expressly provided that the determination whether there was a defence of qualified privilege was for the court, not the jury. It was argued in Hanrahan that, in accordance with that section, there is no role for the jury in determining any disputed facts and that all questions relating to the determination of the defence are for the judge. That argument was rejected by Kirby P (at 90A).
In a separate judgment, Clarke JA concluded (at 102D) that it was clear the judge at first instance was dealing with the defence at common law rather than under the statute. On that analysis, the question of the proper approach under the statute did not arise. The third member of the Court was Mahoney JA, who agreed with Kirby P (at 98A).
My consideration of those authorities led me to doubt the correctness of the statement in Davis that, at general law, the question of reasonableness of the conduct of the defendant for the purpose of the defence of qualified privilege was a matter for the judge. It was a matter for the judge for the purpose of the statutory defence under s 22 of the 1974 Act but that Act provided that the question whether there was a defence of qualified privilege under the Act was to be determined by the court and not by the jury.
Shorn of statutory intrusion, the general law appears to hold that, in addition to questions of law, some questions that involve "important considerations of public and social policy traditionally refined and determined by the judge" (if they are not also questions of law) should be decided by the judge. But I do not think the element of reasonableness in s 30(1)(c) of the 2005 Act necessarily bears that characterisation. As recorded in the judgment of Evatt J in Bedford (citing Greer LJ in Watt v Longsdon), some questions of degree are left to the determination of a jury, such as the question in negligence cases of what the reasonably careful man would do.
To the extent that this question is helpfully informed by other statute law, it may be noted that s 132(5) of the Criminal Procedure Act 1986 (NSW) confers authority on the Court, when considering whether to order a criminal trial by judge alone, to refuse to make such an order "if it considers that the trial will involve a factual issue that requires the application of objective community standards, including (but not limited to) an issue of reasonableness, negligence, indecency, obscenity or dangerousness".
Perhaps more pertinently, the 2005 Act itself appears to leave an issue of reasonableness (in a different context) to the jury. One of the defences under the Act is the defence of failure to accept a reasonable offer to make amends: s 18 of the Act. An element of that defence is that "in all the circumstances the offer was reasonable". In a carefully reasoned decision, the defamation list judge in the District Court, Gibson DCJ, has held that that is a question of fact to be determined by the jury in accordance with s 22(2) of the Act: Hunt v Radio 2SM Pty Ltd (No 2) [2010] NSWDC 43 at [45].
I should note that, in that decision, her Honour referred to the decision in Davis and evidently accepted the correctness of the proposition that the question of reasonableness for the purpose of the statutory defence of qualified privilege is one reserved to the judge under the general law. Her Honour referred in support of that contention to the second reading speech given by Mr Bob Debus MLA (NSW Parliament, Defamation Bill, 13 September 2005). However, the second reading speech makes no express reference to the question of reasonableness. Mr Debus said: "Clause 22 provides that the judge will continue to determine issues such as whether an occasion is one of absolute or qualified privilege, and will be solely responsible for determining damages." I do not think there is any inconsistency between those remarks and the conclusion I have reached. The fact that Gibson DCJ (who has greater experience than me in this field) evidently accepts the correctness of Davis warrants respectful consideration but, upon reflection, has not persuaded me from my own view.
Clearly, the issue raised by s 30(1)(a) of the Act (whether the recipient has an interest or apparent interest in having information on some subject) is one reserved for determination by the judge under the general law in accordance with the authorities considered above. In my view, however, the question whether the conduct of a publisher in publishing allegedly defamatory matter was reasonable in the circumstances is a question of fact and not one that entails a normative judgment of the kind more appropriately determined by the judge. Accordingly, I do not think it is a question which, at general law, is required to be determined by the judge.
For those reasons, I concluded that if there was a dispute for the purpose of the defendants' defence under s 30 of the Act as to the third element of that defence (whether the conduct of the defendants in publishing the matter complained of was reasonable in the circumstances), that would be a question for the jury in accordance with s 22(2) of the Defamation Act 2005.
[2]
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Decision last updated: 11 September 2015