TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL COURT)

Defamation - Privilege - Absolute privilege - Statements made in judicial proceedings - Affidavit provided to police officer before application filed - Statement provided to police officer about reasons for having wanted not to proceed - Whether published in the course of a proceeding held before or under the authority of a court of justice.

Dawkins v Lord Rokeby (1875) LR 7 HL 744; Munster v Lamb (1883) 11 QBD 588; Lilley v Roney (1892) 61 LJQB 727, 8 TLR 642; Watson v M'Ewan [1905] UKHL 1; [1905] AC 480, referred to.

Judgment Number: [2008] TASSC 13

3 Judgment for the appellant dismissing the respondent's action.

1 Subject to matters I will mention, I agree with the reasons for judgment of Blow J and his conclusion that the appeal should be allowed and that the judgment for the respondent should be substituted with a judgment for the appellant.

2 Blow J concludes that the affidavit of 28 June 2004 was sworn for the purpose of the restraint order proceeding and was something done in the course of that proceeding. However, as his Honour says, it does not matter. The affidavit was prepared and sworn by the appellant immediately before the making of the complaint that charged the respondent with assault and the making of the application for the restraint order. It is possible that the affidavit was required by the police only for the purpose of emphasising to the appellant the need for truthfulness in the information she was providing, which was to form the basis for the institution of both proceedings. If that was the purpose, the position remains that the appellant was entitled to the absolute privilege of the Defamation Act 1957, s11(a), because the making of the document involved the publication of matter in the course of a proceeding held before or under the authority of a court of justice. The privilege extends to any document published on an occasion properly incidental to judicial proceedings and necessary for them, and to statements made in the course of a preliminary examination of a witness to find out what the witness may prove. Mann v O'Neill [1997] HCA 28; (1997) 191 CLR 204 at 211 - 212; Watson v M'Ewan [1905] UKHL 1; [1905] AC 480 at 487. That such a statement is made in the form of an affidavit is immaterial.

3 The appellant's standing in the proceeding is commonly referred to as that of a complainant. It often happens in proceedings, particularly in assault cases, that a complainant will change his or her mind and advise police that he or she no longer wants the proceedings to continue, and it is well-known that some of such complainants subsequently change their mind again and ask that the proceedings continue. Those communications will almost always be entitled to absolute privilege as a publication in the course of a proceeding. The appellant's statement of 14 August 2004 is no exception.

4 I have had the benefit of reading the reasons for judgment prepared by each of Crawford and Blow JJ and agree with their reasons for concluding that the appeal should be allowed and the judgment for the respondent should be replaced by a judgment for the appellant.

5 To the authorities that have been cited I add a reference to Kennedy v Hilliard (1859) 10 Ir Com Law Rep 195 at 202 - 216 where Pigot CB in an informative judgment details the history of the immunity granted at common law to defamatory publications made in the course of judicial proceedings. The starting point of his recitation of that history is the second part of Lord Coke's Institutes of the Laws of England which, according to the volume available to me, was published in 1642. The passage quoted from 228 of that volume by Pigot CB at 202 demonstrates that for several centuries prior to the enactment of the Defamation Act 1895, s11, it was recognised that the immunity afforded to such publications extended beyond that which was said in the course of the proceedings, to what was said to a party's legal representative about the case for the purposes of framing it and prosecuting it. The authorities cited by the Chief Baron in that decision also demonstrate that it had long been recognised that in the context of the immunity, the phrase "the course of a judicial proceeding" extended beyond material published during the actual hearing.

6 This appeal relates to an action for damages for defamation in respect of assertions in documents provided to police officers in connection with court proceedings. The material in question was published when the Defamation Act 1957 ("the 1957 Act") was in force. That Act was repealed by the Defamation Act 2005, s50, but by virtue of s48(3) of that Act, the 1957 Act continued to apply to causes of action that arose before the repeal. Provision was made in the 1957 Act, s11(a), for absolute privilege to apply to matter published in the course of court proceedings. This appeal concerns issues as to the scope of the protection provided by that section.

7 In June 2004 the appellant alleged that she had been assaulted by the respondent, her former husband. Two proceedings were commenced against the respondent in the Magistrates Court of Tasmania in relation to her allegations ¾ a prosecution for assault alleging a contravention of the Police Offences Act 1935, s35(1), and an application for a restraint order pursuant to the Justices Act 1959, s106B. Police officers routinely appear before magistrates in such proceedings pursuant to the Justices Act, s38(3) and (4) and s106E(1A)(c). On 28 June 2004, apparently before any documents were filed in either proceeding, the appellant swore an affidavit containing details of the alleged assault. The affidavit was prepared by a police officer, and was retained by police officers after the appellant swore it.

8 The appellant subsequently decided that she did not want any proceedings to go ahead. On 30 June 2004, after both proceedings had been commenced, she signed a statement saying that she wished to withdraw from making the complaint of assault and no longer wished for police to lay complaints against the respondent. Apparently both proceedings were neither proceeded with nor dismissed. The appellant subsequently changed her mind. On 14 August 2004 she signed a statement requesting the police to proceed in relation to her complaint of assault. In that statement she gave an explanation as to why she had previously sought to withdraw her complaint. She said, "I honestly felt at the time that there would be repercussions if I went through with it and I felt like I had to make the complaint go away so I could feel safe."

9 The respondent brought an action against the appellant claiming damages for defamation in respect of the affidavit of 28 June 2004 and the statement of 14 August 2004. He contended that words I have quoted in the statement meant, and were understood to mean, that he would commit some unlawful act of retribution against the appellant if she requested police officers to pursue action against him on the basis of the allegations made in the affidavit.

10 The action was tried with a jury. Counsel for the appellant relied upon the 1957 Act, s11(a), which reads as follows:

"A person does not incur any liability as for defamation by publishing defamatory matter in the course of ¾

(a) a proceeding held before or under the authority of a court of justice".

There was a submission that, because of s11(a), the appellant had no case to answer in relation to the affidavit or the statement, but the learned trial judge rejected that submission in respect of both documents. She took the view that the wording of s11(a) compelled an interpretation confining its operation to material published during hearings. The jury found for the respondent (who was then the plaintiff) and awarded $10,000 damages, comprising $4,500 in respect of the affidavit and $5,500 in respect of the statement.

11 The appellant contends that, within the meaning of s11(a), both documents were published in the course of a proceeding held before or under the authority of a court of justice. The respondent concedes that s11(a) does not apply only to material published during court hearings. However he contends that s11(a) cannot apply to the affidavit because it was published before there was any proceeding before the Magistrates Court; and that the words in the statement of 14 August 2004 were not sufficiently related to the proceedings then pending for them to constitute matter published "in the course of ... a proceeding held before or under the authority of a court of justice".

12 The purpose of s11(a) is quite clear. Persons involved in legal proceedings, including judges, magistrates, barristers, solicitors and witnesses, should be permitted to express themselves with complete freedom, without fear of being sued for damages for defamation. Such an immunity has long been regarded as essential to the proper administration of justice.

13 Such an immunity is provided by the common law, where it has not been superseded or abrogated by statute. Over 230 years ago, in R v Skinner (1772) Lofft 54 at 56[1763] EngR 35; , 98 ER 529 at 530, Lord Mansfield said:

"... neither party, witness, counsel, jury, or Judge, can be put to answer, civilly or criminally, for words spoken in office."

14 The first defamation statute in Tasmania appears to have been the Defamation Act 1895 ("the 1895 Act"). Section 11 of that Act was the predecessor of s11 of the 1957 Act and used almost identical words. It read as follows:

"11 No person incurs any liability as for defamation by publishing, in the course of any proceeding held before or under the authority of any Court of Justice, or in the course of any Inquiry made under the authority of any Statute, or under the authority of Her Majesty, or of the Governor in Council, or of either House of Parliament, any defamatory matter."

This section appears to have been copied from the Defamation Act 1889 (Qld), s11, which was almost identical.

15 The 1957 Act made significant changes to the law in this State relating to defamation, particularly by abolishing the distinction between libel and slander. However it contains nothing to indicate any intention on the part of Parliament to change the extent of the immunity in respect of material published in the course of court proceedings. It follows that, to determine the intended meaning of s11(a) of the 1957 Act, it is necessary to consider the intention of Parliament when enacting its predecessor in 1895.

16 By 1895 it was well established that at common law the absolute privilege attaching to a witness applied not only to words spoken in court, but also to anything said by a witness in an affidavit or some other document in the course of judicial proceedings. One of the oldest relevant authorities is Cutler v Dixon [1591] EngR 1; (1585) 4 Co Rep 14b, 76 ER 886. The report of the judgment of the King's Bench in that case reads as follows:

"It was adjudged, that if one exhibits articles to justices of the peace against a certain person, containing divers great abuses and misdemeanors [sic], not only concerning the petitioners themselves, but many others, and all this to the intent that he should be bound to his good behaviour; in this case the party accused shall not have for any matter contained in such articles any action upon the case, for they have pursued the ordinary course of justice in such case: and if action should be permitted in such cases, those who have just cause for complaint, would not dare to complain for fear of infinite vexation."

17 In Maloney v Bartley [1812] EngR 165; (1812) 3 Camp 210, 170 ER 1357, a libellous statement in an affidavit published by a magistrate's clerk was held to be actionable because the affidavit was sworn extrajudicially. However Wood B said, at 3 Camp 212, 170 ER 1358:

"Had the affidavit been made in the course of a judicial proceeding, no indictment nor action could have been maintained against the clerk, whatever might be the nature of its contents."

18 Assertions in affidavits that would otherwise have been actionable as libels were held not to be actionable in Doyle v O'Doherty [1842] EngR 15; (1842) Car & M 418, 174 ER 570; Revis v Smith [1856] EngR 51; (1856) 18 CB 126, 139 ER 1314; and Henderson v Broomhead [1859] EngR 621; (1859) 4 H & N 569, 157 ER 964. In the last of those cases, Crompton J said, at [1859] EngR 754; 4 H & N 579, 157 ER 968, "No action will lie for words spoken or written in the course of any judicial proceeding."

19 Dawkins v Lord Rokeby (1875) LR 7 HL 744 concerned material in a written paper handed by a witness to a military Court of Inquiry. The House of Lords consulted the judges in the Exchequer Chamber, whose judgment was delivered by Kelly LCB. At 752 his Lordship said:

"A long series of decisions has settled that no action will lie against a witness for what he says or writes in giving evidence before a Court of Justice."

At 754, Lord Cairns LC, with whom the other members of the House agreed, said that he took that to be "the settled law as to the protection of witnesses in judicial proceedings".

20 In Munster v Lamb (1883) 11 QBD 588 at 601, Brett MR said:

"... and with regard to witnesses, the general conclusion is that all witnesses speaking with reference to the matter which is before the Court ¾ whether what they say is relevant or irrelevant, whether what they say is malicious or not ¾ are exempt from liability to any action in respect of what they state, whether the statement has been made in words, that is on vivâ voce examination, or whether it has been made upon affidavit."

21 Lilley v Roney (1892) 61 LJQB 727 concerned allegations in a letter of complaint sent to the Incorporated Law Society and an affidavit sworn for the purpose of instituting disciplinary proceedings. After the solicitor was completely exonerated, he brought an action for libel. The defendants applied for the action to be dismissed on the basis that the publications in question were made in the course of a judicial proceeding, and therefore absolutely privileged. Cave J, with whom Lawrance J agreed, said, at 727 - 728:

"The letter with affidavit is the form given for setting in motion what are admittedly judicial proceedings."

It was held that an action for libel was not maintainable, but the plaintiff was allowed to amend his pleadings so as to seek damages for malicious prosecution. That appears from another report of the same case: Lilley v Roney (1892) 8 TLR 642 at 643. That case is particularly significant because it concerns written assertions made for the purpose of a proceeding, but before its commencement.

22 More recently, the scope of the privilege at common law was summarised by Brennan CJ, Dawson, Toohey and Gaudron JJ in Mann v O'Neill [1997] HCA 28; (1997) 191 CLR 204 at 211 - 212, as follows (omitting footnotes):

"It is well settled that absolute privilege attaches to all statements made in the course of judicial proceedings, whether made by parties, witnesses, legal representatives, members of the jury or by the judge. It extends to oral statements and to statements in originating process, in pleadings or in other documents produced in evidence or filed in the proceedings. It is said that it extends to any document published on an 'occasion properly incidental [to judicial proceedings], and necessary for [them].'"

23 In my view there is nothing in the 1895 Act or the 1957 Act that suggests that Parliament intended to change the law as to the liability of witnesses in respect of defamatory words spoken or written in the course of court proceedings. There is no reason why Parliament might have wanted to do that. I think much clearer language would have been used if there had been any such intention to abrogate the common law. It would be absurd if a witness was protected only in respect of oral evidence, and not affidavit evidence. It would be absurd if a witness was protected in respect of affidavits sworn after proceedings had been commenced, but not in respect of affidavits sworn for the purpose of proceedings that were proposed or contemplated, and later instituted. In such situations, the protection afforded by the legislation would be illusory.

24 The Acts Interpretation Act 1931, s8A(1), requires an interpretation that promotes the purpose or object of the 1957 Act to be preferred to one that does not. In my view the legislative purpose underlying s11(a) was to facilitate the administration of justice by protecting witnesses and others from the possibility of being sued for defamation. That purpose would be promoted by adopting an interpretation of s11(a) that gives a witness full protection, rather than an interpretation that gives a witness protection in limited circumstances. An interpretation that denies a witness protection in respect of an affidavit sworn before proceedings were commenced, or in respect of oral statements but not written ones, would certainly not promote the administration of justice.

25 Counsel for the appellant submitted that the swearing of an affidavit for the purpose of proceedings that were later instituted was something done "in the course of ... a proceeding held before or under the authority of a court of justice" within the meaning of s11(a). Counsel for the respondent made a submission to the effect that such an interpretation was not open because it strained the language of the section too far. I disagree. In one sense, when affidavit evidence is required or permitted, the course that a proceeding takes involves first the preparation, and then the filing, of the appropriate originating process and affidavits. Thus the preparation of such documents can be said to be something that is done in the course of the proceeding.

26 I was unable to find any reported case as to the interpretation of the words "the course of a proceeding". However it is worth mentioning that the Supreme Court of Canada has held that the crime of attempting to obstruct "the course of justice in a judicial proceeding" can be committed at the investigatory stage, before the commencement of any proceeding: R v Wijesinha (1995) 100 CCC (3d) 410.

27 Having regard to the common law as to the publication of written defamatory matter in the course of court proceedings, the wording of the relevant provisions in the 1895 and 1957 Acts, the evident purpose of those provisions, and the undesirable and absurd consequences of interpreting them narrowly, I think that s11(a) should be interpreted as extending to both oral and written defamatory matter, including defamatory matter published for the purpose of court proceedings but before their commencement.

28 In restraint order proceedings, when the applicant is not a police officer, the application is required to contain "an affidavit of the applicant stating that to the best of his or her knowledge and belief the information contained in the application is true": Justices (Restraint Orders) Rules 2003, r4(1)(b)(ii). Counsel for the respondent asserted that the affidavit in respect of which the defamation action was brought was not an affidavit contained in an application, and therefore not an affidavit required to be sworn before the institution of proceedings. I do not think it matters whether that was so. Evidence may be given at the hearing of a restraint order application by affidavit: Justices (Restraint Orders) Rules, r8(1). Since there is no provision authorising the use of affidavit evidence when a magistrate conducts a hearing in respect of a charge of assault, I think it must be inferred that the affidavit was sworn for the purpose of the restraint order proceeding. Even if the affidavit in question was prepared for use at the hearing, rather than pursuant to r4(1)(b)(ii), I consider that the making of the assertions in it was something done in the course of the restraint order proceeding.

29 Unlike the affidavit, the statement of 14 August 2004 was plainly not a document intended to be relied upon as evidence. At common law, when a complainant alleges to police officers, or to any investigating and prosecuting authority, that an offence has been committed, absolute privilege does not apply: Mann v O'Neill (supra) at 216. There is no reason to interpret s11(a) as applying to that situation. But the assault prosecution was commenced before 14 August 2004. The appellant was obviously the principal prosecution witness. The document in question took the form of a handwritten statement made by a witness to a police officer, but its contents comprised a request to proceed with the assault proceeding, preceded by a few paragraphs of background information. In my view the sentence that gave rise to the claim for damages could have been intended by the appellant to serve two purposes. First of all, it provided a reason for the police to proceed with the assault case when the appellant had earlier gone cold on that idea. Secondly, and more significantly for present purposes, it told the police what she was likely to say if cross-examined about having wanted not to proceed. In such a situation, it is likely for a cross-examiner to put to a complainant that she was not really assaulted at all, and that the reason that she asked the police not to proceed was that she knew there had been no assault. By explaining to the police why she had chosen not to proceed, she was alerting the police to evidence that she might be able to give in re-examination. There was no suggestion in her evidence at the trial that she or anyone else thought the information in question might be useful at the hearing of the assault charge, but I consider it significant that the statement was capable of being useful to a police prosecutor at a hearing in that way.

30 In Watson v M'Ewan [1905] UKHL 1; [1905] AC 480, the House of Lords had to decide whether, at common law, a statement made by a witness in a proof of evidence was protected by absolute privilege. Their Lordships concluded that it was. At 487 the Earl of Halsbury LC, with whom the other members of the House concurred, said:

"It appears to me that the privilege which surrounds the evidence actually given in a Court of justice necessarily involves the same privilege in the case of making a statement to a solicitor and other persons who are engaged in the conduct of proceedings in Courts of justice when what is intended to be stated in a Court of justice is narrated to them ¾ that is, to the solicitor or writer to the Signet. If it were otherwise, I think what one of the learned counsel has with great cogency pointed out would apply ¾ that from time to time in these various efforts which have been made to make actual witnesses responsible in the shape of an action against them for the evidence they have given, the difficulty in the way of those who were bringing the action would have been removed at once by saying, 'I do not bring the action against you for what you said in the witness-box, but I bring the action against you for what you told the solicitor you were about to say in the witness-box.' If that could be done the object for which the privilege exists is gone, because then no witness could be called; no one would know whether what he was going to say was relevant to the question in debate between the parties. A witness would only have to say, 'I shall not tell you anything; I may have an action brought against me to-morrow if I do; therefore I shall not give you any information at all.' It is very obvious that the public policy which renders the protection of witnesses necessary for the administration of justice must as a necessary consequence involve that which is a step towards and is part of the administration of justice ¾ namely, the preliminary examination of witnesses to find out what they can prove. It may be that to some extent it seems to impose a hardship, but after all the hardship is not to be compared with that which would arise if it were impossible to administer justice, because people would be afraid to give their testimony."

31 For similar reasons, I think that the making of a defamatory statement in a proof of evidence should be regarded as something done in the course of a proceeding held before or under the authority of a court, within the meaning of s11(a). The statement of 14 August 2004 was not a proof of evidence. It may have been intended as no more than a request, accompanied by reasons, for the police to proceed with the assault case. But it did contain, in the sentence complained of, details of evidence that could potentially be adduced from the appellant in the witness box. Because of that fact, I think the sentence complained of should be regarded as having been published in the course of the assault proceeding.

32 For these reasons, I consider that the appellant did not incur any liability by publishing the material in the affidavit or the statement. I would therefore allow the appeal, set aside the judgment, and substitute a judgment for the appellant for the dismissal of the action.