An Historico-Legal Study of the Defamation Act 1958 (NSW)

HDR Candidate: David Galbraith

Advisors: Prof Nicholas Aroney (Principal) and Prof Warren Swain (Associate)

Title: An Historico-Legal Study of the Defamation Act 1958 (NSW)

Abstract: 

The purpose of this thesis is to offer, for the first time, a "cradle to grave" study of the Defamation Act, 1958 (NSW) (the Act), which was in force from 31 December, 1958 until 1 July, 1974, a period of about sixteen-and-a-half years.  Prior to the Act's commencement, so far as defamation was concerned, NSW had been a "common law" state.  The Act sought to codify NSW defamation law in terms virtually identical to Sir Samuel Griffith's Defamation  Law of Queensland, 1889.  By reference to material already in the public domain and hitherto unexamined primary source material the thesis affirms the orthodox view that the Act was passed by or as a result of representations from Ezra Norton and his mother, Ada Culhane.  These representations were made almost coterminously with publication of Cyril Pearl's Wild Men of Sydney, which painted an unflattering portrait of John Norton, Ezra's father and the former husband of Ada.  He died in 1916, and the prime purpose of the representations was to introduce into NSW defamation law  the Queensland definition of "defamatory matter" (which became s. 5 of the Act), as an imputation concerning a person or a member of his family, whether living or dead, by which he was likely to be injured in his reputation, or injured in his trade or profession, or by which other people were caused to shun, avoid, despise, or ridicule him.  As well as affirming orthodoxy, the thesis argues that, because Pearl's book was published, the Act's intended purpose could not be achieved.  In part this was due to the presumption against Act's having retrospective operation, and the circumstances of Norton and his mother

The thesis examines in detail authorities concerning the definition of "defamatory matter", notes that neither Norton or his mother commenced proceedings under it, and concludes that two of them involving natural persons as plaintiffs did not provide significant authorities on the interpretation of s. 5.  In one case because it was straight-forward and did not involve the complexities of the section, and in the other because, on the facts, it was so speculative as to be incapable of being a significant authority.  Two cases involving corporate plaintiffs are also examined in detail.  They were concerned with the requirement that the imputation "concern a person", and that of likelihood of injury to profession or trade.  In the first Mason, J. gave an expansive reading of the requirement that an imputation concern a person, and,  by orthodox use of authority, Stephen, J. arrived at a different conclusion.  The different reasonings are closely examined and it is submitted that Stephen, J.'s view is preferable.  The second built on and extended Mason, J's view in the first, and mutatis mutants it is submitted that the outcome in that case was also unsatisfactory.  The relevant chapter also makes the point that be the time both of these cases had been decided, the Act had been repealed, and the difficulties they posed had become academic.

The two most frequently litigated sections of the Act were ss. 15 and 17, which dealt with the defences of comment and qualified protection. Cases decided under them are closely examined for the light they shone on the question of the extent to which the Act was a code (and what codification means), and the related question of the operation of s. 3(2) which provided that to the extent that the Act dealt with, and made different provision for, any protection existing immediately before its commencement, nothing in the Act was to be construed to affect any such protection or privilege.  Examination of these cases shows that the application of the principle in Bank of England v. Vagliano Bros which ought to have governed interpretation of the Act was applied selectively, and particularly in determining the scope of s. 3(2) to function as a gateway to allow common law defences to be applied.  In some cases s. 3(2) was allowed a wide scope, and in other it was allowed a narrow scope.  Relevant Chapters conclude that authorities favouring the narrow scope are to be preferred.  These Chapters also bring out problems that arose from the fact that, unlike most codifying statutes that codified the law at the time of their passing, the Act sought to codify defamation law as it existed about 70 years before its enactment.

Following a change of government in May, 1965 defamation law was referred to the NSW Law Reform Commission (LRC) which published a Working Paper, and in April, 1971 a Report which recommended repeal of the Act and re-introduction of the common law, albeit with statutory modifications.  This led to passing of the Defamation Act, 1974 (the 1974 Act).  The final Chapters examine the LRC's Working Paper and Report and their principal recommendations.  By reference to hitherto unexamined primary source material they seek to explain the long interval between publication of the Report and introduction of the Bill for the 1974 Act.  They also examine such material and Hansard to explain why, in 1974, the Party that had supported passing of the Act, and did so with great haste and enthusiasm, did not oppose either its repeal or the second reading of the 1974 Bill, thereby acknowledging that the experimentation with codification had been a failure.