· whether there is publication to a person other than the plaintiff;
· whether it is a publication by the defendant; and
· whether it is publication of and concerning the plaintiff.
The issues which may arise in answering these questions may be inextricably connected with issues which the jury has to determine in assessing whether or not the publication is defamatory, as where the jury has to determine any extrinsic facts or circumstances upon which either the identification of the plaintiff or an innuendo beyond the natural or ordinary meaning of the matter complained of depends.
3.19 Secondly, and as a practical matter, success for the defendant upon the issue of publication puts an end to the case. It can, therefore, be viewed logically in the same way as it is treated in practice: a preliminary issue to be determined before any question relating to the imputations. It would, obviously, be very inconvenient for the jury to be kept waiting until the judge had decided the issue of publication.
3.20 The Commission thus recommends no change to the present law where the jury determines publication (Defamation Act 1974 (NSW) s7A(4)). However, the Commission does recommend that s 7A(3) of the Defamation Act 1974 should be redrafted to include, as a function expressly assigned to the jury, the determination of the issue of publication. At present, the point is embedded in s 7A(4)".
17 It can be seen from that extract that at that time the learned Commissioners had a view about s7A and publication that happily conforms with what I have said above. It is a view that acknowledges publication being an issue for the jury, but which is expressed in paragraph 3.20 with a recommendation that s7A(3) should be redrafted expressly to assign to the jury "the determination of the issue of publication". The learned Commissioners go on to say, by using a word which in 1995 they would hardly have anticipated to have the meaning that it now has in April 2003, that "at present the point is embedded in s7A(4)".
18 Mr Walker SC for the first and second defendants, to put it perhaps with less elegance and grace than he did, acknowledged that the point could be viewed as fine, if not evenly balanced. Nonetheless he submitted that the paradigm of s7A, such as it is, can accommodate the proposition that republication is a non-jury matter in at least two ways.
19 First, on an examination of what republication is about in terms of liability therefor that might be found in the sued defendant, that liability is in a way peculiar to the law of defamation. It is outside generally understood concepts of agency or vicarious liability. Whilst it is acknowledged, as it has to be, questions akin to foreseeability are to be determined on what I will for present purposes call the Speight v Gosnay ((1891) 60 LJ QB 231) principles, the status in tort of the sued defendant, upon the requisite findings to establish that for which the sued defendant is liable when republication is proved, is not that of a publisher. It is not that of the publisher to which, a sensible reading of s7A points. As I understand the position, with that proposition, if I have correctly outlined it, Mr Smark is not in disagreement.
20 The second matter to which Mr Walker referred in the context of submissions as to the "exhaustive" function of s7A, was the provisions of sub-s(4)(b) and the "all unresolved issues of fact". The point he made was that that subsection would embrace, and can embrace, if the first proposition is correct, those matters of fact peculiar to the issue of republication. I further interpolate: this afternoon's application has another distinction, namely that it is, in my experience, the first time that the phrase "all unresolved issues of fact" in sub-s(4)(b) has ever received attention.
21 Section 7A makes sense in terms of its comprehensibility and operation when consideration is limited to the issue of publication being publication by the sued defendant to a third person, which is, of course, fundamental to the establishment of liability; to the issue of whether - and it might be the fact in some cases - the defendant was such a publisher at all and to the issue of whether the publication was of and concerning the plaintiff. Other issues may have to be determined by the jury as part of its fact-finding function in relation to the imputations, and I merely mention one of them; namely, extrinsic facts going to true innuendo.
22 The matter can be resolved as best it can in my view, by the focus which both Mr Walker and Mr Smark placed upon the sued defendant vis-a-vis that which is republished by a third party. That focus leads to the conclusion that the description "publisher" is not appropriate to be attached to the sued defendant in relation to the third party's publication, or, to put it shortly, the sued defendant is not a publisher of that which the third party republished. All that happens if the intermediate steps, if I may so describe them, are established is that liability is fixed on the sued defendant for that which the third party published. If those intermediate steps are established, that which the third party published is, because of those steps, called a republication. But it is not a publication by the sued defendant.
23 That focus permits, in my view, a construction of s7A(4) that restricts the issue of fact to be determined by the jury to those issues of fact that link the sued defendant to his, her or its matter complained of. That is, his, her or its publication that is said to give rise to the s9 causes of action.
24 There are two additional matters to which reference must be made. The first is this. I have not reproduced the fine differences between the submissions made by Mr Walker and Mr Smark. I have sought to reproduce the substance of their common submissions and position, which leads of course to the observation, rightly made by Mr Smark, that the view could be taken that this issue has been raised and determined without a true contradictor.
25 The second matter to which I wish to make reference is the judgment of Hunt CJ at CL in Williams v John Fairfax Group Pty Ltd, unreported, 20 November 1991; BC9101414, pages 3 and 11-12 of the Butterworths Reports to which Mr Walker referred, especially the latter where his Honour makes reference to a jury determining issues of republication. It was decided without the benefit of submissions of the kind I have heard this afternoon and can be viewed in one way as begging the very question, the more so, with respect, when it is borne in mind that that was a pre s7A case.
26 Accordingly, I rule that issues of republication are not for the jury.
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