Mitchell, Paul --- "The Foundations of Australian Defamation Law" [2006] SydLawRw 22; (2006) 28(3) Sydney Law Review 477
* Reader in Law, King’s College London. I am very grateful to Andrew Kenyon for encouraging me to think about Australian defamation law and inviting me to visit the the Centre for Media and Communications Law at the University of Melbourne in August 2005. Much of the research for this article was conducted during that visit as a Senior Fellow, CMCL. I would also like to thank Brad Sherman and Robert Burrell (University of Queensland) for their help.
[1] Libel Act 1847 (NSW) ss1, 2 (hereafter ‘the 1847 Act’).
[2] Libel Act 1847 (NSW) s4.
[3] Defamation Act 1901 (NSW); Defamation Act 1912 (Qld).
[4] The relevant statutory sections are set out in Edward Sykes, ‘Some Aspects of the Queensland
Civil Defamation Law’ (1948–[1950] UQLawJl 4; 1951) 1(3) UQLJ 19.
[5] Alex Castles, Annotated Bibliography of Printed Materials on Australian Law 1788-1900
(1994) at xxiii.
[6] Ernest Tebbutt, The Statute Law Relating to Defamation and Newspapers, etc (1909) at 1.
[7] Bruce Kercher, An Unruly Child; A History of Law in Australia (1995) at 103.
[8] Ibid.
[9] Alex Castles, An Australian Legal History (1982) at 456.
[10] Richard Helmholz (ed), Select Cases on Defamation to 1600 (1985) 101 Selden Society at xxx–
xxxii.
[11] [1812] EngR 269; (1812) 4 Taunt 355.
[12] Paul Mitchell, The Making of the Modern Law of Defamation (2005) at 3–9.
[13] UK, House of Commons, Parliamentary Papers [1816] Vol II (423) at 597.
[14] Ibid.
[15] UK, House of Commons, Parliamentary Debates (Hansard) (series 2) Vol 34, 8 May 1816 at col 378.
[16] Id at col 379.
[17] Id at cols 382–383.
[18] Id at col 385.
[19] Michael Lobban, ‘Henry Brougham and Law Reform’ (2000) 115 EHR 1184 at 1189–1190.
[20] Parliamentary Debates, above n15 at col 393.
[21] Id at col 395.
[22] The Journals of the House of Commons, Vol 71, 14 June 1816 at 461.
[23] Parliamentary Debates (series 2) Vol 34, 14 June 1816 at col 1108.
[24] General Index to the Journals of the House of Commons 1801–1820 (1825) at 783.
[25] The Journals of the House of Commons Vol 88 28 March 1833 at 231 and 30 March 1833 at 241.
[26] ‘this Act shall extend to all cases of Libel, and to cases of Libel only’. Parliamentary Papers, [1833] Vol III (136) at 35 at 3 of the Bill. ‘Libel’ was given its traditional definition — see at 2 lines 33–39.
[27] Id at 5, lines 18–23.
[28] Id at 1, lines 6–8: ‘some distinctions have obtained in the practice of the Law between Civil and Criminal Proceedings in cases of Libel, and it is expedient that such Proceedings should be assimilated’.
[29] Parliamentary Debates (series 3) Vol 16, 28 March 1833 at col 1209.
[30] The Journals of the House of Commons Vol 89, 18 February 1834 at 39.
[31] Parliamentary Debates (series 3) Vol 21, 18 February 1834 at col 468.
[32] Parliamentary Papers [1834] (48) Vol 3 at 449.
[33] Parliamentary Debates (series 3) Vol 31, 18 February 1834 at col 474.
[34] Id at n32.
[35] Parliamentary Debates (series 3) Vol 31, 18 February 1834 at col 470.
[36] Id at col 478.
[37] Id at col 478–479.
[38] Id at col 479.
[39] General Index to the Journals of the House of Commons 1820–1837 (1838) at 632.
[40] Parliamentary Debates (series 3) Vol 38, 3 May 1837 at col 478.
[41] Parliamentary Debates (series 3) Vol 22, 18 March 1834 at col 411.
[42] Id at col 413.
[43] Id at col 413–414.
[44] Id at col 418.
[45] Id at col 421.
[46] Id at col 423.
[47] Parliamentary Debates (series 3) Vol 38, 3 May 1837 at col 478.
[48] Journals of the House of Commons, Vol 90, 19 March 1835 at 139.
[49] Parliamentary Debates (series 3), Vol 26, 18 March 1835 at col 1180.
[50] Journals of the House of Commons, Vol 91, 11 February 1836 at 26.
[51] Parliamentary Debates (series 3), Vol 31, 11 February 1836 at col 308.
[52] General Index to the Journals of the House of Commons 1820–1837 (1838) at 632.
[53] Parliamentary Papers [1837] (75) Vol 3 at 329 at 2 clauses 5 and 6. Although the terms of the clause dealing with truth were identical to the 1834 Bill, it is interesting to note that the side heading read differently: ‘Defendant in actions for Libel may prove the truth of his allegations’. This was difficult to reconcile with the section’s reference to ‘Indictment’.
[54] Parliamentary Debates (series 3) Vol 38, 3 May 1837 at col 477.
[55] Id at col 483.
[56] Id at col 487–488.
[57] Id at col 488.
[58] Id at col 498 and 499 respectively.
[59] Journals of the House of Commons, Vol 92, 3 May 1837 at 326.
[60] Ibid.
[61] Journals of the House of Commons, Vol 93, 7 February 1838 at 255.
[62] Journals of the House of Commons, Vol 94, 28 February 1839 at 67.
[63] General Index to the Journals of the House of Commons 1837–1852 (1853) at 581.
[64] Gareth Jones & Vivienne Jones, ‘John Campbell’ in the Oxford Dictionary of National
Biography (2004–2005).
[65] Parliamentary Debates (series 3) Vol 66, 13 February 1843 at col 395.
[66] Id at col 397.
[67] Ibid.
[68] Ibid.
[69] Id at col 401.
[70] Id at col 404.
[71] Jones & Jones, above n64.
[72] House of Lords Select Committee, Report from the Select Committee of the House of Lords Appointed to Consider the Law of Defamation and Libel, and to Report Thereon to the House; With Minutes of Evidence Taken Before the Committee, and an Index (London: 1843) at 12, q3 (in evidence to 1834 Committee). I am grateful to Michael Bools for drawing this material to my attention.
[73] Id at 31 q83.
[74] Id at 61 q194 (Duncan M’Neill, Lord Advocate of Scotland).
[75] Id at 143 q589 (John Borthwick).
[76] Id at 64 q224.
[77] Ibid.
[78] Id at 65 q226.
[79] Id at 159.
[80] Id at 36 q24.
[81] Id at 38 q36.
[82] Id at 39 q42.
[83] Id at 39–40.
[84] Id at 16 q22.
[85] Id at 136 q522.
[86] Id at 141 q573 (John Borthwick).
[87] Id at 44 q84 (Stanley Lees Giffard).
[88] Id at 166 q723 (Samuel Blackburn).
[89] Id at 32 q88.
[90] Id at 44 q86 (Stanley Lees Giffard).
[91] Id at 57 q170.
[92] Id at 58 q173.
[93] Ibid.
[94] Id at 59 q175.
[95] Ibid.
[96] Id at 59 q176.
[97] Id at vii.
[98] Ibid.
[99] Ibid.
[100] Mary Hardcastle (ed), John Campbell, Life of John, Lord Campbell, Lord High Chancellor of
Great Britain Vol II (1881) at 178.
[101] Journals of the House of Lords Vol 75, 3rd July 1843 at 473 and 10 July 1843 at 499.
[102] Parliamentary Debates (series 3), Vol 70, 18 July 1843 at col 1252–1253.
[103] Id at col 1253.
[104] Ibid.
[105] Parliamentary Papers [1843] (521) Vol III at 275 cl3.
[106] Parliamentary Debates (series 3) Vol 70, 27 July 1843 at col 1357. (Mr Christie)
[107] Parliamentary Debates (series 3) Vol 71, 16 August 1843 at col 868
[108] Id at col 875 (16th August 1843).
[109] Ibid.
[110] Id at col 882.
[111] Id at col 884 (Mr Macaulay).
[112] Id at col 878 and 890.
[113] Id at col 987 (22nd August 1843).
[114] Ibid.
[115] Id at col 992.
[116] Id at col 991.
[117] Jones & Jones, above, n64, quoting a letter written in 1824 from Campbell to his brother: ‘I think I am in every way a match for Pollock’.
[118] There is nothing in the correspondence between Robert Peel (then the Prime Minister) and Pollock on the subject.
[119] Max Thompson, The First Election; The New South Wales Legislative Council Election of 1843 (1996). The Legislative Council had existed since 1824, but as an unelected body.
[120] James Windeyer, Richard Windeyer: Aspects of his Work in New South Wales from 1835–1847 (1992) at 21.
[121] Sydney Morning Herald (28 August 1844) at 2, col 6.
[122] Ibid.
[123] Ibid.
[124] Sydney Morning Herald (26 September 1844) at 2, col 5.
[125] Sydney Morning Herald (3 June 1846) at 2, col 5.
[126] Ibid.
[127] Sydney Morning Herald (10th June 1846) at 3, col 3.
[128] Ibid.
[129] Ibid.
[130] Id at col 4.
[131] Ibid.
[132] The complete run of The Satirist and Sporting Chronicle is available at: <www.nla.gov.au/ferg/>.
[133] See, for example, Robin Walker, The Newspaper Press in New South Wales, 1803–1920 (1976).
[134] Sydney Morning Herald (10 June 1846) at 3, col 4.
[135] Ibid.
[136] Sydney Morning Herald (11 June 1847) at 2, col 3.
[137] Thompson, above n119 at 79.
[138] Id at 8.
[139] Id at 70.
[140] Victor Windeyer, ‘The Truth of a Libel’ (1935) 8 ALJ 319 at 323.
[141] Castles, above n9 at 153–155.
[142] Walker, above n133 at 34–42.
[143] John Fairfax, The Story of John Fairfax: Commemorating the Centenary of the Fairfax Proprietary of the Sydney Morning Herald (1941) 88–96.
[144] Report from the Select Committee of the House of Lords, above n72 at 57 q170 (George Lewis).
[145] See generally the discussion in Thompson (above n119) of William Bland & Richard Fitzgerald at 17 and 76 respectively.
[146] Thompson, above n119 at 94.
[147] Sydney Morning Herald ( 3 July 1847) at 2, col 2.
[148] Id at col 3.
[149] Id at col 2.
[150] Id at col 3.
[151] Woodin v Matthews quoted in James Moriarty, The Law of Actionable Defamation Whether Spoken or Written in the State of New South Wales 1909 (1909) at 6. (National Library of Australia).
[152] See text accompanying notes 76–79 above.
[153] Maxwell v Daley (1854) Legge 843.
[154] Darby v Reid (1851) Legge 704.
[155] Report from the Select Committee of the House of Lords, above n72 at vii.
[156] Woodin v Matthews, above n151.
[158] Id at 125–126.
[159] Id at 126.
[160] Id at 126–127.
[161] Id at 128.
[163] Id at 10–11.
[164] Id at 12.
[165] Ibid.
[166] (1891) 12 NSWLR (CL) 75.
[167] Id at 79.
[168] See above, text accompanying n105.
[169] O’Connor v Ridsdale (1891) 8 WN 37.
[170] Armstrong v Parkinson (1857) Legge 1021.
[171] Id at 1022.
[173] Id at 886.
[174] See above, text accompanying n123.
[175] (1859) Legge 1149.
[176] (1860) Legge 1254.
[177] Id at 1256.
[178] (1861) Legge 1402.
[179] (1850) Legge 601.
[180] Id at 604–605.
[181] [1572] EngR 452; (1610) 8 Co Rep 146a.
[182] See further Percy Winfield, A Text-Book of the Law of Tort (1937) at 354–356.
[183] (1853) Legge 763.
[184] Id at 764.
[185] Ibid (emphasis in original).
[186] (1861) Legge 1402.
[187] Ibid.
[188] (1859) Legge 1149.
[189] Id at 1151.
[191] Id at 53.
[192] Id at 57.
[193] Ibid.
[194] Ibid.
[195] Lang v Fairfax (1865) 4 SCR (NSW) 268.
[196] Id at 281.
[197] Id at 292.
[198] Id at 293.
[199] Ibid.
[200] Id at 297.
[201] Id at 295.
[202] Sydney Morning Herald (3 July 1847) at 2, col 3.
[203] Defamation Act 1901 (No 22) (NSW).
[204] New South Wales Parliamentary Debates (Hansard second Series), 1901 Vol 1, col 1910–1913.
[205] Defamation Act 1912 (No 32) (NSW).
[206] Castles, above n9 at 477.
[207] An Act to Amend the Law Respecting Defamatory Words and Libel 1856 (19 Vict No 4),consolidated by Statute of Wrongs 1865 (28 Vict No 251).
[208] Sykes, above n4; Sandra Berns, ‘Codifying Passion: the Griffith Defamation Code’ in John
Macrossan (ed), Griffith, the Law and the Australian Constitution (1998) at 35.
[209] Frederick Pollock, The Law of Torts (1887) at 205. 210 Rehabilitation of Offenders Act 1974 (UK) s8.