Davis v Nationwide News Pty Ltd

HIS HONOUR : 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.

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).”

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.”

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.”

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).

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.