Pervan v North Queensland Newspaper Co Ltd

Furthermore, such an interpretation will render the s. 375 defence of fair comment practically superfluous. Section 375 provides that it is lawful to publish a fair comment respecting various subjects. In s. 375, it seems obvious that fair comment has its common law meaning. All of the subjects referred to in s. 375 answer the description of subjects of public interest. A subject which can be the basis of comment under s. 375, therefore, is a subject of public interest under s. 377(8). However, at common law a defamatory comment made on untrue facts cannot be a fair comment [54] . In Digby v Financial News Ltd. [54] , Collins M.R. said: "If the defendant makes a misstatement of any of the facts upon which he comments, it at once negatives the possibility of his comment being fair." It follows that a comment on untrue facts cannot be a fair comment for the purpose of s. 375. Consequently, if s. 377(8) applies to comment on non-defamatory facts or on facts outside the publication as well as defamatory facts in the publication, and a defendant does not have to prove the truth of those facts before the comment can be adjudged fair, the conventional defence of fair comment will have little scope for operation.

1. Digby v Financial News Ltd. , [1907] 1 K.B. 502, at p. 508. 2. Digby v Financial News Ltd. , [1907] 1 K.B. 502, at p. 508.

No defendant would wish to rely on s. 375 to defend a defamatory comment if the comment could be defended under s. 377(8) without having to prove the truth of the factual basis of the comment. Consequently, the defence of a comment under s. 375 will probably be confined to those cases where the public discussion of the subject of public interest under s. 377(8) was not for the public benefit. Perhaps some matters concerned with national security might be outside s. 377(8) but protected by s. 375. In days gone by, perhaps the courts might have held that the use of contraceptive devices, although a subject of public interest, was not a subject the discussion of which was for the public benefit [55] . But the scope of operation of s. 375 will be very limited.

1. cf. Sutherland v Stopes , [1925] A.C. 47, at pp. 55, 67-68, 70.

It seems most unlikely that, in adding the words "and if, so far as the defamatory matter consists of comment, the comment is fair" to s. 377(8) in 1899 [56] , the legislature intended to make the conventional defence of fair comment largely superfluous. On the contrary, it is arguable that the addition of these words was intended to make all the common law rules relating to fair comment apply to all comment which was published on a s. 377(8) occasion. But, however that may be, the ordinary rules of statutory construction compel the conclusion that s. 377(8) does not apply to defamatory comment based on non-defamatory facts or on facts which were not published in the course of or for the purposes of a relevant discussion. So far as possible, a court should avoid construing a statutory provision in a manner which produces anomalies or causes the application of the provision in various situations to be inconsistent with paradigmatic illustrations of applying the provision or which renders parts of the provision inapplicable to many situations which, on that construction, would be within the paragraph. In my view, each of these consequences flows from a construction of s. 377(8) which holds that a comment can be fair comment for the purpose of the sub-section if it is based on facts believed to be true, irrespective of whether the facts are defamatory or non-defamatory or contained in the publication. Furthermore, a construction of s. 377(8) which makes an honest belief in non-defamatory facts or an honest belief in facts outside the publication a condition of the defence finds no support in the text of s. 377. To make good these assertions, it is necessary to examine the practical operation of the defence of fair comment in various situations.

1. The Criminal Code Q largely adopts the provisions of the Defamation Law of Queensland 1889 Q, s. 17 of which provided: "It is a lawful excuse for the publication of defamatory matter - (8) If the publication is made in good faith in the course of, or for the purposes of, the discussion of some subject of public interest the public discussion of which is for the public benefit."

In practice, a defamatory comment may arise in one of four situations:

1. The comment may be based on defamatory facts that are published with the comment.

As I have said, I agree with the proposition that, if the defamatory facts are protected by s. 377(8), so is any defamatory comment that is based upon them. At common law, the general rule was that the defendant had to prove the truth of every fact which was the basis of the comment [57] . However, it was held in Wason v Walter [58] and Thompson v Truth & Sportsman Ltd. [No. 4] [59] that, where a defamatory comment is based on defamatory facts which are published on a privileged occasion, the defendant is not required to prove the truth of those facts. If the publication of defamatory facts is protected by s. 377(8), it would accord with those authorities to hold that a comment on those facts could be fair although the facts were untrue. On this point, I agree with the majority judgment.

1. Peter Walker & Son Ltd. v Hodgson , [1909] 1 K.B. 239, at pp. 250, 254, 256-257; Digby , [1907] 1 K.B., at p. 508. 2. (1868) L.R. 4 Q.B. 73. 3. (1932) 34 S.R. NSW 21, at pp. 23-24.

2. The comment may be based on non-defamatory facts which are published with the comment.

In Mangena v Wright [60] , Phillimore J. said that "if the facts as alleged warrant defamatory comment they are defamatory and must be proved to be true". However, in many perhaps even the majority of fair comment cases, the facts alleged to justify the comment are not defamatory. In many cases, the defamatory comment will consist of a comment impugning the skill, reliability or competence of the plaintiff and will be based on statements, policies or actions for which the plaintiff is responsible. A critical review of a book or play is the paradigm case of fair comment. More often than not, any defamatory comment will be based on a description of the contents of or extracts from the work which the critic sets out in the review [61] . Defamatory comments concerning politicians and public figures are also frequently based on their own statements or on non-defamatory actions or policies for which they are responsible. Thus, a politician may declare during an election campaign that his or her government will not impose any new taxes. When elected, the government may impose a new tax. A statement that the politician is dishonest may be regarded by a jury as comment and, having regard to the promise and the imposition of the tax, as fair comment.

1. [1909] 2 K.B. 958, at p. 977. 2. See, e.g., Gardiner v John Fairfax & Sons Pty. Ltd. (1942), 42 S.R. NSW 171.

The defendant argued that comment made on non-defamatory facts can be defended under s. 377(8) provided that the commentator has an honest belief in those facts. But the terms of s. 377 and the definition of "defamatory matter" compel the rejection of this construction of the paragraph. Section 377 protects the publication of "defamatory matter". By definition, defamatory matter is the defamatory imputation. Consequently, when the published facts which form the basis of the comment are not defamatory, they are not protected by s. 377(8). That sub-section is concerned with the protection of defamatory facts and defamatory comments published in the course of or for the purposes of a relevant discussion. It is not concerned with the publication of non-defamatory facts. Nothing in s. 377(8) gives any ground for concluding that that sub-section protects comment on non-defamatory facts. Indeed, the terms of s. 377(8) and the definition of good faith in s. 377 show conclusively that s. 377(8) is not dealing with a case of comment on non-defamatory facts.

First, the words "and if, so far as the defamatory matter consists of comment, the comment is fair" in s. 377(8) suggest that the sub-section is not concerned with defamatory comment per se. Its principal concern is with the publication of defamatory facts. Only as a concomitant of the publication of defamatory facts is the sub-section concerned with comment. On this view, if no defamatory facts are published, no question of defending defamatory comment under s. 377(8) arises. The defendant must rely on s. 375 to defend a comment on non-defamatory facts.

Secondly, the definition of good faith in s. 377 tells heavily - I would say conclusively - against the proposition that comment based on non-defamatory facts can be adjudged fair unless it is proved that the defendant believed that the non-defamatory facts were untrue. Every part of the definition of good faith is concerned with the defamatory matter. A key element of good faith is the requirement that the defendant must not have believed in the untruth of the defamatory matter. However, nothing in the definition gives any credence to the notion that the defendant's belief in non-defamatory facts is an issue under s. 377(8). Indeed, having regard to the terms of the sub-section, the truth of non-defamatory facts could never be an issue. Of course, proof that the stated facts were untrue and that the defendant knew or believed that they were untrue would be evidence that the defendant believed the defamatory comment "to be untrue" for the purpose of the definition. But a defendant might well believe in the "truth" of the comment even though he or she had deliberately falsified the facts. Thus, a critic might honestly believe that a play was very bad yet seek to support a comment to that effect by misrepresenting some of the facts. If s. 377(8) applies to comment based on non-defamatory facts, the defence could succeed even though the defendant had misrepresented the facts.

Moreover, if s. 377(8) applies to comment based on non-defamatory facts, a defendant who made a comment on falsely stated non-defamatory facts would be in a better position in respect of the comment than a person who made a comment on falsely stated defamatory facts. Proof that the defendant knew that the defamatory facts were untrue would automatically destroy the defence of fair comment under s. 377(8). Proof that the defendant knew non-defamatory facts were untrue would not automatically destroy the defence of fair comment under s. 377(8). It is difficult to believe that the legislature could have intended such a paradoxical result.

Furthermore, if a comment on non-defamatory facts could be protected by s. 377(8), the plaintiff would not be able to prove an absence of good faith in relation to the publication of those facts by relying on other parts of the definition of good faith in s. 377 - relevance, manner and extent, and improper motive. Those heads of good faith are related to the publication of the defamatory imputation, not the publication of its general content. Consequently, if s. 377(8) protects defamatory comment based on non-defamatory facts, the defence will succeed even though those facts were irrelevant to the discussion, or the manner and extent of their publication went beyond what was reasonably necessary for the occasion or those facts were published with an improper motive. With great respect to those who hold the opposite view, I cannot accept that the legislature ever contemplated that the defence under s. 377(8) would cover such a case.

Relevance, manner and extent, and improper motive are key elements in the legislature's attempt to strike a balance between protection of reputation and freedom of expression. Where defamatory comment is involved in a situation to which s. 377(8) applies, relevance is of particular significance. Fair comment does not mean reasonable comment; it means that "it is the honest expression of the commentator's real view" [62] on the facts which are the basis of the comment. Thus, when defamatory comment is involved in a situation to which s. 377(8) applies, it is important that the basis of the comment as well as the comment be "relevant to the matters the existence of which may excuse the defamatory matter". Otherwise an honest comment based on facts which are irrelevant to the discussion might be protected by s. 377(8).

1. Turner v Metro-Goldwyn-Mayer Pictures Ltd. , [1950] 1 All E.R. 449, at p. 461, per Lord Porter.

If that sub-section is confined to comment on defamatory facts published with the comment, the facts must always be relevant. But if the defence extends to comment on non-defamatory facts, those facts need not be relevant since s. 377(8) is not concerned with non-defamatory facts. Suppose, in the course of discussing who should be appointed to be the Director-General of A.S.I.O., the defendant claims that a particular candidate is not a fit and proper person to be appointed, the ground of the defamatory comment being the false assertion that twenty years before the candidate had been the Secretary of a Socialist Party. Assuming that to say that a person is or has been a socialist is not defamatory [63] , the basis of the comment is a non-defamatory "fact". A tribunal of fact might well conclude that the defendant honestly held the view that the candidate was not a fit and proper person to be the Director-General even though membership of the Socialist Party so long ago was not in fact relevant to the appointment. If s. 377(8) applies to comment based on non-defamatory facts, the defence will succeed because the definition of good faith is not concerned with non-defamatory facts. Yet if the defendant had said that the candidate was an incompetent Secretary of a Socialist Party, the defence would fail if the tribunal of fact thought that the basis of the comment was defamatory and irrelevant to the discussion.

1. As was conceded in Slatyer v Daily Telegraph Newspaper Co. Ltd. (1908), 6 C.L.R. 1.

However, the argument for the defendant maintained that, because the sub-section is intended to protect honest defamatory comment published in the course of or for the purposes of a relevant discussion, the legislature must surely have intended that the protection will not be lost if the comment was made on non-defamatory facts which were false but believed to be true. But, as I have attempted to show, this claim is not based on the terms of the sub-section. Furthermore, belief in facts has never been a criterion of fair comment. The facts which are the basis of the comment must be either true or privileged or, in the Code States, protected. In s. 377(8), belief in the untruth of the factual basis will defeat the defence of fair comment when the comment is made on facts which are protected by that sub-section. But this is because proof that the defendant believed the "protected" facts to be untrue, or was otherwise actuated by an absence of good faith, defeats the occasion of qualified protection. In that situation, the facts are no longer protected. If they are untrue, the defence of fair comment must fail. But belief in the untruth of non-defamatory facts is not an issue under s. 377(8).

Accordingly, in my opinion, s. 377(8) has no application where the defamatory comment is based on non-defamatory facts which are published with the defamatory comment. That class of case cannot be fitted into the scope or purpose of the sub-section. It must stand or fall on the application of the defence of fair comment under s. 375 which is its natural home.

3. The defamatory comment may be based on facts which are not published in the article.

This is often the case where a play or sporting spectacle is being reviewed, but it is certainly not limited to plays or spectacles. To raise the defence of fair comment in this class of case, it is sufficient that either expressly or by implication the defendant has identified the subject matter of the comment. The defence is available even though the publication does not state or indicate the facts which form the basis of the comment. As long as the subject matter of the comment is identified, the defendant is entitled to the benefit of the defence of fair comment if he or she is able to prove one or more facts which will justify the comment [64] . The difference between identifying the subject matter or substratum of fact of the comment and the facts which justify the comment is vital. The comment must indicate the subject matter or substratum of fact of the comment, but the defence does not fail because the publication does not indicate the individual facts which are the basis of the comment. It is the "substratum" of fact [65] not the individual facts which must be identified. If a critic states that a professional footballer played badly and the jury holds that the statement is comment, the critic is entitled to rely on any fact which will support that comment even though the fact is not stated in the article or notorious and no reader saw the game. The distinction between the subject matter or the substratum of fact and the facts which justify the comment is drawn out in two illuminating passages in the speech of Lord Porter in Kemsley v Foot.

1. Kemsley v Foot , [1952] A.C. 345, at pp. 358, 362. 2. ibid., at p. 356.

the inquiry ceases to be - Can the defendant point to definite assertions of fact in the alleged libel upon which the comment is made? and becomes - Is there subject matter indicated with sufficient clarity to justify comment being made? and was the comment actually made such as an honest, though prejudiced, man might make? The second states [67] : In a case where the facts are fully set out in the alleged libel, each fact must be justified and if the defendant fails to justify one, even if it be comparatively unimportant, he fails in his defence. Does the same principle apply where the facts alleged are found not in the alleged libel but in particulars delivered in the course of the action? In my opinion, it does not. Where the facts are set out in the alleged libel, those to whom it is published can read them and may regard them as facts derogatory to the plaintiff; but where, as here, they are contained only in particulars and are not published to the world at large, they are not the subject matter of the comment but facts alleged to justify that comment.

In the present case, for instance, the substratum of fact upon which comment is based is that Lord Kemsley is the active proprietor of and responsible for the Kemsley Press. The criticism is that that press is a low one. As I hold, any facts sufficient to justify that statement would entitle the defendants to succeed in a plea of fair comment. Twenty facts might be given in the particulars and only one justified, yet if that one fact were sufficient to support the comment so as to make it fair, a failure to prove the other nineteen would not of necessity defeat the defendants' plea. (My emphasis.)

1. ibid., at p. 357. 2. ibid., at pp. 357-358. Lord Tucker expressly agreed (at p. 362) with this passage in Lord Porter's speech.

Equally illuminating is a passage in the speech of Lord Oaksey [68] :

A defendant who has made a defamatory comment on a matter of public importance must be entitled to adduce any relevant evidence to show that the comment was fair, and in order to do so must be entitled to allege and attempt to prove facts which he contends justify the comment. Whether the facts alleged are satisfactorily proved or not, it will still be for the jury to say whether they consider that the comment in the circumstances proved might have been made by an honest man. 1. [1952] A.C., at p. 361.

Fair comment in the Kemsley situation is very different from what may be called the conventional case of fair comment. In the conventional case, the basis of the comment appears in the publication. The reader is able to judge whether the facts justify the comment. Once the defendant proves the facts which are the basis of the comment, that person is entitled to the benefit of the defence unless the opinion expressed by the defendant was not honestly held. But in a situation such as that in Kemsley, the reader does not know what facts were the basis of the comment. Unless litigation ensues, the reader will never know what particular facts the defendant had in mind. Moreover, as the second passage from the speech of Lord Porter makes plain, the defence may succeed even though some or most of the "facts" which the defendant had in mind were untrue.

If the facts forming the basis of the comment always had to be drawn to the reader's attention, effective comment on many subjects would be frustrated. No doubt, it is for this reason that the common law provides for a defence of fair comment if the subject matter or "substratum of fact" of the comment is sufficiently indicated without requiring that the particular facts justifying the comment be set out or indicated. The plaintiff's protection is found in the rule that the defence will fail unless the defendant proves the truth of sufficient facts to justify the comment.

But if s. 377(8) applies to a case where the facts allegedly supporting the comment are outside the publication, the plaintiff will have no such protection. Take the facts of Kemsley. If the argument of the defendant in this case is accepted and s. 377(8) applies, the defendant in a situation such as that in Kemsley could succeed although the basis of the comment did not exist. If the publication indicated the substratum of fact or subject matter - that Lord Kemsley is the active proprietor of and responsible for the Kemsley Press - the defendant would only have to show that he or she honestly believed that there were "facts" outside the publication which justified the implied comment that Lord Kemsley's press was a low one. Those facts would not be known to and, ex hypothesi, since they do not exist, could not be ascertained by the reader. Moreover, the "facts" would not be published in the course of or for the purposes of the discussion of a subject of public interest, the public discussion of which is for the public benefit. That is to say, they are neither true nor protected. It is a remarkable proposition that a comment can be fair although it is based on statements or events which did not occur, which are not published or capable of being ascertained and whose existence is neither presumed by law nor the subject of a privileged or protected communication.

If the argument of the defendant is accepted, it is difficult to see how the words "the comment was fair" add anything of substance to s. 377(8). If the last limb of s. 377(8) was not there, the defence would fail in any event if it was proved that the defendant did not believe in the truth of the comment. It is true that, if the argument of the defendant is accepted, the words "if the comment is fair" mean that the defence will also fail if the defendant did not believe the truth of the facts on which the comment is based. But in a case where the defendant has not published the "facts", it is difficult to see any practical distinction between a belief in the truth of a comment and a belief in the truth of facts which are the basis of an honest belief in the truth of a comment. It seems unlikely that a person who did not publish any "facts" would have an honest belief in a published comment, but, in his or her mind, would have a belief in the untruth of the facts which were the basis of the honest belief in the comment.

In Uren v Australian Consolidated Press Ltd. [69] , the New South Wales Court of Appeal correctly held that a defence of fair comment based on the provisions of s. 17(h) of the Defamation Act 1958 NSW, the N.S.W. equivalent of s. 377(8), could not succeed when the defendant failed to identify any facts which could support the comment. Wallace P. also said [70] that in his opinion there is "room for argument that material which is exclusively comment does not warrant a defence based on s. 17(h) and that s. 15 [the N.S.W. equivalent of s. 375] (if otherwise apt) is an appropriate defence, but this is for another day". Walsh J.A. said [1] that he was of the opinion "that the plea by the defendant in this action, based upon s. 17(h) of the Act, could not succeed unless some facts were placed before the jury concerning the plaintiff's political life, by reference to which a judgment could be made as to the fairness of the comments". Later his Honour said [2] :

It was contended for the defendant, however, that elsewhere in the article in which the words sued upon in the first count appeared, there were statements of fact, and these provided a basis for the comments, which could be found to be fair as comments on those facts. It was said that it was not necessary, for the purposes of s. 17(h), for the defendant to prove the truth of those facts and that it was sufficient if the comment could be found to be fair on the assumption that those facts were truly stated. See Rigby v Associated Newspapers Ltd. [3] . But, in my opinion, the argument for the defendant fails, for the reason that what was contained elsewhere in the article did not amount to a statement of any facts sufficient to provide a basis for the comments sued upon. It would seem that Walsh J.A. was of the view that, if s. 17(h) applies to defamatory comment based on facts outside the article, the defendant must prove the truth of sufficient facts to justify the comment. However, the other member of the Court - Sugerman J.A. - expressly held that s. 17(h) was "available as a defence where the defendant relies entirely on comment" [4] . This was in accord with what his Honour had said in the earlier case of Rigby v Associated Newspapers Ltd. [3] : It is true that at common law the defence of fair comment requires that the comment be upon facts truly stated, or notorious to the writer and those persons to whom the comment is published. But in my opinion it would be contrary to the tenor of s. 17 to impose such a requirement upon it. In so far as s. 17 concerns itself with the truth of defamatory matter it does so under its requirement of good faith. And what is there required is not that the defamatory matter shall be in fact true but that it shall not be believed to be untrue. It appears to me that that is the proper approach to the matter of fair comment under s. 17 - not that it must necessarily be comment upon facts which are true, but that it must be comment upon facts which at least are not believed to be untrue and whose statement as facts is therefore protected, subject to other requirements of "good faith", by the section. 1. (1969) 71 S.R. NSW 29. 2. ibid., at p. 32. 3. ibid., at p. 51. 4. ibid., at pp. 51-52. 5. (1966) 68 S.R. NSW 414, at p. 425. 6. (1969) 71 S.R. NSW, at p. 43. 7. (1966) 68 S.R. NSW 414, at p. 425.

Three comments should be made on this passage. First, the reference to the requirement that at common law the comment must be upon "facts truly stated, or notorious to the writer and those persons to whom the comment is published" is misleading. It suggests that, if the facts which justify the comment are not truly stated, they must be notorious to the reader. It is true that such a suggestion is sometimes made. But it is erroneous. If it was the law, no comment could be made on the public performance of a singer, actor or sports person without setting out the facts which justify the comment except in those cases where the facts of the performance were notorious. As the speeches of Lords Porter and Oaksey in Kemsley make clear, it is the subject matter or substratum of fact which must be indicated or notorious, not the detailed facts which will support the comment. It is difficult to resist the conclusion that Sugerman J.A. thought that s. 17(h) could apply to any defamatory comment, whatever its basis, because the facts which justify the comment must be in the publication or notorious or indicated by the publication. If his Honour had recognized that the facts which justify the comment need not be in the publication or notorious or sufficiently indicated, I doubt that he would have reached the conclusion which he did.

Secondly, although Sugerman J.A. recognizes that good faith under s. 17 is concerned only with defamatory matter, his Honour's judgment seems to assume that the basis of the comment is always defamatory matter. He does not deal with the issue of comment on non-defamatory matter. Furthermore, while his Honour must have had in mind a defamatory comment, based on facts outside the publication, his judgment does not explain how the definition of good faith in s. 17 - which is the same as in s. 377 of the Queensland legislation - can apply to them. Thirdly, nothing in the sub-section gives any support for the conclusion that the defendant's belief or non-belief in non-defamatory facts is an element of the defence. On the contrary, the definition of defamatory matter shows conclusively that it is not. When the defamatory matter consists entirely of defamatory facts, belief or non-belief in non-defamatory facts is not an issue raised by the sub-section. How can the position be different when the defamatory matter consists of comment and not fact?

The views expressed by Sugerman J.A. in Rigby were largely repeated in Uren [5] when he said:

It is of the essence of comment that it should be comment upon facts. These may be, but need not necessarily be, stated in the matter sued upon; it is sufficient that the facts upon which the comment is made should be notorious or sufficiently indicated (Kemsley v Foot). But a substratum of fact there must be. If matter is to be classified as comment the reader must be put into a position in which he is enabled to judge for himself whether the comment is well-founded - Odgers on Libel and Slander [6] , quoted with approval by Lord Porter in Kemsley v Foot [7] . 1. (1969) 71 S.R. NSW, at p. 42. 2. 6th ed., (1929), at p. 166. 3. [1952] A.C., at p. 356.

This passage indicates even more clearly than the passage in Rigby that his Honour thought that the facts which are the basis of the comment must be "notorious or sufficiently indicated" if they are not set out in the publication. But, as I have pointed out more than once, it is the subject matter of the comment which must be notorious or sufficiently indicated. The overall effect of this passage from his Honour's judgment seems to be that his Honour thought that the subject matter or substratum of fact of the comment and the facts which justify the comment are identical. Curiously, he cites Kemsley and Lord Porter's citation of the passage from Odgers on Libel and Slander as authority for these propositions. The passage from Odgers was part of a long passage from that work which Lord Porter cited [8] when he was dealing with the question whether there was a sufficient substratum of fact stated or indicated in the words which were the subject of the action. Although Lord Porter said that he found his view "well expressed" in the long extract from Odgers , the later passages in his speech - which I have quoted - make it plain that his Lordship was not saying that the facts which justify the comment must be placed before the reader. Quite the contrary.

For the foregoing reasons, I am of the opinion that the statements of Sugerman J.A. in Rigby and Uren were erroneous. The tentative view of Wallace P. in Uren is the correct view.

Furthermore, there may be an additional answer to the argument that s. 377(8) protects a defamatory comment based on facts outside the publication. A conflict exists in the cases as to the effect of a defendant's failure to prove the basis of a comment. One view is that it will "be treated as an independent allegation of fact" [9] . Hunt J. adopted this view in Hawke v Tamworth Newspaper Co. Ltd. [10] . However, there is high authority to support the opposite conclusion [11] . Thus, in Kemsley, it was said that it was not "contended that the words contained in that article are fact and not comment: rather it is alleged that they are comment with no facts to support it".

1. O'Shaughnessy v Mirror Newspapers Ltd. (1970), 72 S.R. NSW 347, at p. 361, per Jacobs and Mason JJ.A. 2. [1983] 1 N.S.W.L.R. 699, at pp. 716-717. 3. Kemsley, [1952] A.C., at p. 354; Turner , [1950] 1 All E.R. 449.

In requiring that comment be fair, s. 377(8) makes it harder for defamatory comment to obtain the protection of the sub-section than it does for defamatory statements of fact. Without the concluding words of s. 377(8), defamatory comment would have the same protection as defamatory statements of fact. But one of the purposes of the few changes to the statute of 1889 made by the Criminal Code (described by Sir Samuel Griffith as "verbal alterations" [12] ) was to ensure that defamatory comment is not protected by qualified protection unless, inter alia, it is fair. It is not enough that the comment was published in the course of or for the purposes of a relevant discussion.

1. In a letter of 29 October 1897 to the Attorney-General of Queensland, Sir Samuel Griffith wrote that he had "adopted the Defamation Law of 1889 in its entirety, with a few verbal alterations [the alteration to s. 377(8)] removes a possible doubt as to the construction of the existing statute": see Carter's Criminal Law of Queensland, 7th ed. (1988), p. 5097.

If s. 377(8) applies to comment based on facts outside the article and the correct doctrine is that the failure to prove the basis of a comment results in the comment being treated as an allegation of fact, a defendant will be able to evade the necessity to prove that the comment was fair by failing to identify the basis for the comment. Of course, a defendant always prefers - for the purpose of s. 377(8) - to contend that the defamatory matter is all fact and that none of it is comment. That contention avoids the necessity to identify the "factual" basis of the comment and the risk that the court will hold that, having regard to that "factual" basis, the comment was not fair. If the comment must be based on the defamatory facts in the publication, the court can determine what is fact and what is comment and whether, having regard to those facts, the comment is fair. But if the defendant can rely on facts outside the article, the court could not determine if the comment was fair if the defendant fails to identify the facts which make the comment fair. By failing to identify the basis of the comment, the defendant will then be in a position where the comment is treated as an allegation of fact. The tribunal of fact will then be forced to treat the "comment" as fact, and the purpose of Sir Samuel Griffith's "verbal alterations" will be defeated. If the sub-section is confined to comments based on facts in the article, however, the basis of the comment is readily seen and evaluated by the tribunal of fact.

For the foregoing reasons, s. 377(8) has no application where the defamatory comment is based on facts outside the publication. That class of case does not fall within the scope and purpose of the sub-section.

4. The comment may be based on a combination of defamatory or non-defamatory facts in the publication and facts outside the publication.

Consistently with what is written above, s. 377(8) must be confined to defamatory comment based on defamatory facts published with that comment. If the defamatory facts in the publication do not justify the defamatory comment, so much of the defence under s. 377(8) as is concerned with comment will fail. In that case, the defendant must rely on the ordinary defence of fair comment under s. 375 and prove either the truth of the facts which were the basis of the comment or that they were otherwise privileged or protected.

It follows from what I have said that I would hold that the defence fails in this case because the whole of the defamatory matter consisted of comment. None of the facts which formed the basis of the comment were contained in the publication. Section 377(8), therefore, was not available as a defence to the comment. Having regard to the way in which the case was conducted, it is for the court to say what was comment and what was fact. However, my view is that, for the purpose of s. 377(8), it is always for the court and not the jury to say what part of the defamatory matter is comment and whether it is fair. The defence of qualified protection is the statutory equivalent of the common law defence of qualified privilege [13] . It was for the judge and not the jury to determine the question of qualified privilege although any conflicts in the evidence were resolved by the jury. "[W]hen the jury have found the facts, it is for the judge to say whether they constitute a privileged occasion" [14] . Similarly, under the Code when the facts are found it is for the judge to say whether the defamatory matter was published on an occasion of qualified protection [15] .

1. cf. Dun v Macintosh (1906), 3 C.L.R. 1134, at p. 1147, per Griffith C.J. 2. Hebditch v MacIlwaine , [1894] 2 Q.B. 54, at p. 58. 3. cf. Telegraph Newspaper Co. Ltd. v Bedford (1934), 50 C.L.R. 632.

The issue of fair comment under s. 377(8), therefore, must be a matter for the judge. Significantly, s. 379 directs that the issues of relevancy and whether the public discussion of any subject is for the public benefit are questions of fact. Significantly, the last paragraph of s. 375 states that whether a comment is fair is a question of fact. These two sections inferentially confirm that the question of fair comment under s. 377(8) is a question for the judge and not for the jury. If the judge is to determine the issue of fair comment under s. 377(8), it would seem to follow that it is for the judge to say what part of the defamatory matter is comment and what is fact for the purpose of the sub-section. Whether or not a statement is one of fact or comment frequently depends on what facts are alleged to be the basis of the comment. The judge's role might often be difficult and could be frustrated if the jury could determine what was fact and what was comment under s. 377(8). The majority judgment cites a number of cases to support the conclusion that in the case of a dispute it is for the jury to determine what is comment and what is fact [16] . However, those cases were dealing with common law or statutory defences of fair comment where the issue of fair comment and the issue of justification are for the jury and not for the judge. When defences under s. 375 and s. 378(8) are raised, the potential for conflict between the findings of the judge and the findings of the jury is likely to be present. But unless the issue of fairness under s. 377(8) is taken away from the judge and conferred on the jury - a course which I think is unjustified - some conflict is inevitable.

1. Bamberger v Mirror Newspapers Ltd. (1969), 43 A.L.J.R. 242; O'Shaughnessy v Mirror Newspapers Ltd. (1970), 125 C.L.R. 166.

However, even if I had favoured the view that the sub-section applied to defamatory comment when the facts which were the basis of the comment are not contained in the publication, I would have allowed the appeal. Before a defendant can rely on a defence of fair comment in a case where the facts are not set out in the article, the comment must identify, expressly or by implication, the subject matter of the comment [17] . In Kemsley, for example, the only reference to the plaintiff was in the heading, "Lower than Kemsley". If no more had appeared, the defence of fair comment would have been inapplicable. However, the body of the article contained a violent criticism of the papers of Lord Beaverbrook. It was held that the subject matter of the comment "Lower than Kemsley" was sufficiently indicated. Lord Porter said [18] :

In an article which is concerned with what has been described as "the Beaverbrook Press" and which is violently critical of Lord Beaverbrook's newspapers, it is, I think, a reasonable construction of the words "Lower than "Kemsley" " that the allegation which is made is that the conduct of the Kemsley Press was similar to but not quite so bad as that of the press controlled by Lord Beaverbrook, i.e., it is possibly dishonest, but in any case low. The exact meaning is for the jury. All I desire to say is that there is subject matter and it is at least arguable that the words directly complained of imply as fact that Lord Kemsley is in control of a number of known newspapers and that the conduct of those newspapers is in question. 1. Uren (1969), 71 S.R. NSW, at p. 42. 2. Kemsley, [1952] A.C., at p. 357.

In the present case, the words are clearly commenting on some subject matter. But I do not think they indicate sufficiently or at all that the subject matter of the comment consists of the allegations made in Parliament rather than the actual conduct of the persons in question. No case that I am aware of has gone to the extreme of saying that a defendant can use extrinsic evidence to show what was the subject matter of the comment. It would seem contrary to principle to allow that to be done because the reader must be in a position to know what the subject matter of the comment was even if he or she is unable to obtain information to assess the fairness of the comment. As I have pointed out, cases of fair comment made on facts not contained in the publication are an exception to the rule that the reader must be in a position to assess whether the comment is justified. But it is one thing to conclude that the defence should be available where the publication, expressly or impliedly, points to the subject matter of the comment. It is quite a different matter to hold that the defence is available even where the publication does not identify the subject matter of the comment, expressly or by implication.

Moreover, even if the Court is permitted to look at the publications of 7 and 9 August 1986, I do not think that it could conclude that the parliamentary allegations, rather than the actual conduct of the councillors, is sufficiently indicated as the basis of the comments. In Jones v Skelton [19] , the Privy Council said of a statement concerning a councillor which was followed by a question mark:

The question mark might convey to the reasonable reader the thought and the meaning that there had been some impropriety. The reader, a jury might conclude, was invited to adopt a suspicious approach and so to be guided to the real explanation of what had taken place - an explanation which the writer of the letter did not care or did not dare to express in direct terms. Similarly in the present case, I think that an ordinary reader would think that the question marks at the end of the first and second sentences in the advertisement indicated that there was something suspicious about the conduct of the councillors which needed investigation. 1. [1963] 63 S.R. NSW 644, at p. 651.

No doubt the report of the allegations made in Parliament gave rise to the publication of the notice. But it does not follow that the notice is commenting on the allegations rather than making a statement about the actual conduct of the councillors. If the author of the notice had stated that the allegations needed investigation, any imputation concerning the plaintiff would have been the result of a comment made on the allegations. Since the allegations were made in Parliament, the defendant could comment on them without the necessity of proving the truth of the allegations [20] . But the author has gone beyond that. He raises the question whether the conduct of the councillors should be investigated. The report of the parliamentary allegations forms the background and perhaps the occasion for the notice. Some of the language of the notice reflects the criticism of Mr. Menzel. But I do not think that the notice itself identifies the allegations as the subject matter of the comment. It seeks to move the debate on to a different plane by calling for a public meeting to discuss the question whether the councillors have feathered their own nests or misappropriated funds. Consequently, it is a statement about the conduct of the councillors, not about the parliamentary allegations. The third sentence of the publication is perfectly consistent with an indication that it is the conduct of the councillors which needs investigating. If that is so, then to establish the defence of fair comment the defendant would have to identify the facts concerning the conduct of the plaintiff in relation to his own affairs or funds of the Council which justified the suspicions implicit in the questions. No attempt was made to identify, let alone prove, such facts.

Furthermore, the trial does not appear to have been conducted on the basis that the defendant was commenting on the report of the allegations made in Parliament. The subject of public interest which was identified for the purpose of s. 377(8) was "the expenditure of the Cyclone Winifred Disaster Relief Fund and the use of Shire Council assets, labour and funds for private purposes". Thus, the defendant's own pleading confirms that the subject of public interest which was the basis of the comment was the conduct of the plaintiff and others in relation to Council assets and their use for the benefit of the plaintiff.

The appeal should be allowed, and the verdict of the jury should be restored.