Defamation (Amendment) Act 1909 (NSW)

Act No. 22, 1909.

An Act to anion(1 the law of defamation. [20th

December. 1909.]

BE it enacted by the King 's Most Exce l l en t Majesty , by and	wi th t he advice and consent of the Legis la t ive Council and Legis la t ive Assembly of New South Wales in Pa r l i amen t	assembled,
and by the au thor i ty of the same, as follows : —

Preliminary.

1. This Act may be cited as t he " Defamation ( A m e n d m e n t )

Act , 1909 ," and shall be const rued with the Defamat ion Act , 1901 , hereinaf ter called the Pr incipal Act .

2 . I n th is Act , unless the context otherwise requi res ,—

" J u r y " includes a Distr ic t Cour t J u d g e s i t t ing for the de te rmina­

tion of questions of fact in an action in a district court .

" N e w s p a p e r " means any paper conta in ing public news,

intel l igence, or occurrences, or any remarks or observat ions thereon, pr inted for sale, and publ ished in New South Wales , periodically, or in parts or numbers , a t intervals not exceeding one month between the publ icat ion of any two such papers,

par ts , or number s .

Also any paper pr in ted in order to be dispersed and

made public , weekly or oftener, or a t intervals no t exceeding

one mon th , conta in ing only or pr incipal ly adver t i sements .

" P r o p r i e t o r " means and includes as well t he sole proprietor of any newspaper, as also, in the case of a divided proprietorship, the persons who, as pa r tne r s or otherwise, represent and are responsible for any share or interest in the newspaper as between themselves and the persons in l ike m a n n e r repre­ sent ing or responsible for the o ther shares or interests there in , and no other person.

ind ic tment , or cr iminal proceeding inst i tuted against t he publ isher of any obscene or b lasphemous libel the obscene or b lasphemous passages, b u t it shall be sufficient to deposit the book, newspaper , or other document conta in ing the alleged libel with t he information, indic tment , or c r iminal proceeding, together wi th par t icu lars showing precisely by reference to pages , columns, and lines in wha t par t of the book, newspaper ,

Declarations, indictments, and criminal prosecutions.

3 . I t shall not be necessary to set out in any information,

newspaper , or other document , t he alleged libel is to be found, and such par t icu lars shall be deemed to form pa r t of t h e record, and all proceedings m a y be t a k e n thereon as t h o u g h the passages complained of had been set out in t he information, ind ic tment , or proceeding.

4 . No cr iminal prosecut ion shall be commenced against any

person for t h e publ ica t ion of any libel wi thout ' the order of a J u d g e

of t h e Supreme Cour t or of a dis t r ic t court first had a n d obtained.
Such appl icat ion shal l be made on not ice to t he person accused,

who shall have an oppor tun i ty of be ing heard against such appl icat ion.

Civil and criminal defences.

5.     ( 1 ) No cr iminal proceeding or civil act ion shall be ma in ta in ­

able agains t any person or corporat ion in respect of the p r in t ing or pub l i sh ing in good faith for t h e information of t he publ ic in a n y newspaper a n y of t he following mat te r s , provided they are no t b lasphemous , sedit ious, or obscene—

(a) a fair and accura te report of the proceedings of ei ther H o u s e

of P a r l i a m e n t of t h e Commonwea l th , or of t he Pa r l i amen t

of any Sta te of the Commonwea l th , or

(b)	a fair and accurate report of the proceedings of any Com­ mi t t ee of any such H o u s e ;
(c)	a copy of, or an extract from or abstract of, any report, paper , votes, or proceedings publ ished by order or unde r t he au thor i ty of e i ther H o u s e of any such Pa r l i amen t as aforesaid;
(d)	a fair and accurate report of the public proceedings of any cour t of jus t ice , w h e t h e r such proceedings are pre l iminary or in te r locutory or final, unless , in the case of proceedings which are not final, t h e publ ica t ion has been prohibi ted by the cour t : Provided t h a t m a t t e r of a defamatory n a t u r e ru led to be inadmissible by t he cour t shal l no t be deemed to be pa r t of the pub l i c proceedings of such court as aforesaid ;

(e) a copy or an abs t rac t of any j u d g m e n t , or of t h e entr ies

re lat ive to any j u d g m e n t , which are recorded in any books

k e p t in t he office of any court of jus t ice ;

(f)	a fair and accurate report of the proceedings of any inquiry
held unde r t he au thor i ty of a n y Act , or u n d e r t he au tho r i t y
of H i s Majesty, or of t h e Governor-Gencra l - in-Counci l , or

of t he Governor- in-Counci l , or an ex t rac t from or abs t rac t of a n y such proceedings, or a copy of, or an ext rac t from, or abs t rac t of, any official report m a d e by the person by whom the inqu i ry was held ;

(g)	any notice or report issued by any Government office or depa r tmen t , officer of S ta te or officer of police, for t h e information of t he publ ic , publ ished wi th t h e consent of such
office, depa r tmen t , or officer; (h)

(h)	a fair and accurate report of the proceedings of any local au thor i ty , board, or body of t rustees , or o ther persons, du ly cons t i tu ted unde r t he provisions of any A c t for the discharge of publ ic functions so far as the m a t t e r publ ished relates to ma t t e r s of publ ic concern, except where nei ther t he publ ic
nor a n y newspaper repor ter is admi t t ed .

A publ icat ion is said to be made in good faith for the informat ion of t h e publ ic if t he person by whom it is made is no t ac tua ted in m a k i n g i t by ill-will to the person defamed, or by any other improper motive, and if the m a n n e r of t he publ icat ion is s u c h as is ordinari ly and fairly used in t h e case of t he publ ica t ion of news.

I n the case of t he publ icat ion of a repor t of proceedings referred to in pa rag raphs (b) (f) (g) and (h) . i t is evidence of a w a n t of good faith if the proprietor , publ isher , or editor has been requested by the person defamed to publish in the newspaper a reasonable let ter or s t a tement , by way of contradict ion or explanat ion of t he defamatory ma t t e r , a n d has refused or neglected to publ ish t he same.

(2) I n any civil action in respect of t he p r in t ing or publ ishing

in a n y newspaper of any defamatory mat ter , any m a t t e r of defence

u n d e r th i s section m a y be pleaded specially with	a plea of not gui l ty ,
or a n y o ther plea, w i thou t the leave of a judge .
6. I n any criminal proceedings or civil ac t ion agains t any person or corporat ion in respect of the publ ica t ion of	any ma t t e r , the

publ ica t ion m a y be deemed to be privileged, no twi ths t and ing tha t such publ ica t ion is made in pur suance of a cont rac t whereby such person or corporat ion unde r t akes for valuable considerat ion to supply

informat ion to the person to w h o m such publ ica t ion is made , if—

(a)	t he publ icat ion is in answer to an inqu i ry m a d e in pu r suance
of such con t r ac t ;
(b)	t he ma t t e r publ ished is re levant to the subject of the i n q u i r y ;
(c)	the m a n n e r and ex ten t of the publ ica t ion do not exceed w h a t

is reasonably sufficient for the occasion ;

(d)	t he person m a k i n g the
to t he person defamed, or by any other improper m o t i v e ; publ icat ion is no t ac tua ted by ill-will
(e) t he person m a k i n g the publ ica t ion has reasonable ground	to

believe the m a t t e r published to be t rue .

Mitigation of damages.

7. A t the tr ial of an act ion for a libel t he defendant m a y give in evidence, in mit igat ion of damages , t h a t the plaintiff has a l ready recovered, or has b rough t act ions for damages , or has received or agreed to receive compensat ion in respect of a libel or libels to the same pu rpo r t or effect as the libel for which such act ion has been b rough t .

Summary

Summary proceedings.

8.     W h e r e t he cr iminal proceedings are commenced aga ins t any

person in respect of t h e p r in t ing or publ i sh ing of a libel, t he cour t m a y receive evidence as to any m a t t e r which under th i s or any o ther Act , or otherwise might be o;iven in evidence by way of defence by t h e person charged on his tr ial on informat ion or i n d i c t m e n t ; and such cour t if of opinion af ter hea r ing such evidence, t h a t there is a s t rong or probable p re sumpt ion t h a t t h e j u r y on the t r ia l would acqui t t h e person charged, may dismiss the case.

9. If t he cour t is, upon the hea r ing of a cr iminal proceeding

aga ins t any person for the publ ica t ion of a libel, of opinion t h a t t h o u g h t h e person charged is shown to have been gui l ty , t h e libel was of a t r ivia l charac ter , and t h a t t he offence may be adequa te ly punished by v i r tue of t he powers" of th i s section, such cour t shall cause the charge to be reduced into wr i t ing and read to the person charged, and shall t h e n address a quest ion to h im to t he following effect, " Do you desire to be t r ied by a ju ry , or do you consent to t he case be ing dealt w i t h summar i ly ?" and if such person assents to t h e case be ing deal t w i th summar i ly , such cour t may s u m m a r i l y convict h i m and adjudge h i m

to pay a fine n o t exceeding fifty pounds . I n this and t h e last

preceding	section	" c o u r t "	means	s t ipendiary	mag i s t r a t e	or	police
mag i s t r a t e .

Trial, costs, and execution.

1 0 . I t shall be compe ten t for t h e cour t or a judge , upon an

appl icat ion by or on behalf of two or more defendants in act ions in respect to t he same, or subs tant ia l ly the same libel b rough t by one and t h e same person, to m a k e an order for t h e consolidation of such act ions, so t h a t they shall be tr ied t o g e t h e r ; and after such order has been made , and before the tr ial of t he said act ions, t he defendants in a n y n e w act ions ins t i tu ted in respect to the same, or subs tant ia l ly the same,

libel m a y be joined in a c o m m o n act ion upon a jo int applicat ion

be ing made by such new defendants and the defendants in the actions

a l ready consolidated.

I n a consolidated act ion under this section, t he j u r y shall assess t h e whole a m o u n t of t he damages (if any) in one sum, b u t a separate; verdict shall be t aken for or against each defendant in the same way as if t he act ions consolidated had been tr ied separately ; and if t he j u r y find a verdict agains t the defendant or defendants in more t h a n one of t h e act ions so consolidated, they shall proceed to appor t ion t he a m o u n t of damages which they have so found between and aga ins t t h e said las t -ment ioned defendants ; and the j udge at t he t r ia l , if the plaintiff is ent i t led to t he costs of t h e act ion, shall m a k e such order as he m a y deem ju s t for t he appor t ionmen t of such costs be tween and

against such defendants . Supplemental.

Supplemental.

1 1 . The proprietor of any newspaper may upon the wr i t t en

request of a n y person who lias commenced an act ion in respect of any defamatory art icle, let ter , report , or wr i t ing in any newspaper supply to such person affected the reby the n a m e and address of the person who supplied such art icle, le t ter , repor t , or wr i t ing to such newspaper , and in defaul t of compliance wi th such reques t any person affected the reby m a y apply to a J u d g e of t h e Supreme Court who may if he

sees fit, after hea r ing such proprietor , direct t h a t such n a m e	and
address be so supplied.

1 2 . Section n ine teen of the Pr incipal Ac t is hereby repealed.