Rowan v Cornwall and Ors No. SCGRG 90/1481 Judgment No. 6102 Number of Pages 3 Defamation (1997) 68 Sasr 253

[1997] SASC 6102

IN THE SUPREME COURT OF SOUTH AUSTRALIA

DUGGAN J

Defamation - privilege - absolute privilege - application by defendants to stay proceedings pursuant to Wrongs Act, 1936s12(1) which attaches abosolute privilege to reports etc published by order of either House of Parliament - held that s12(1) does not apply to publication to a Minister of the Crown of reports commissioned by the Minsiter which are subsequently published by order of either House.

ADELAIDE, 15 April 1997 (hearing, decision)

#DATE 15:4:1997

#ADD 27:4:1997

Plaintiff Dawn Margaret Rowan:

Counsel: Mr J Swanson - Solicitors: James H Swanson

Defendant John R Cornwall:

Counsel: Ms M Panagiotidis - Solicitors: Crown Solicitor (SA)

Defendant Judith M Roberts:

Counsel: Ms M Panagiotidis - Solicitors: Crown Solicitor (SA)

Defendant Judith Blake:

Counsel: Ms M Panagiotidis - Solicitors: Crown Solicitor (SA)

Defendant Rosemary N Wighton:

Counsel: Ms M Panagiotidis - Solicitors: Crown Solicitor (SA)

Defendant The Australian Broadcasting Corporation:

Counsel: Mr G Gretsas - Solicitors: Australian Government Solicitor

Defendant Christopher J Sumner:

Counsel: Ms M Panagiotidis - Solicitors: Crown Solicitor (SA)

Defendant Robyn King:

Counsel: Mr R Whitington QC with Mr G Gretsas - Solicitors: Australian Government Solicitor

Defendant Colleen Johnson:

Counsel: Ms M Panagiotidis - Solicitors: Crown Solicitor (SA)

Defendant Harrison Anderson:

Counsel: Ms M Panagiotidis - Solicitors: Crown Solicitor (SA)

Defendant The State of South Australia:

Counsel: Ms M Panagiotidis - Solicitors: Crown Solicitor (SA)

Defendant Susan M Ryan:

Counsel: Mr R Whitington QC with Mr G Gretsas - Solicitors: Australian Government Solicitor

Defendant The Commonwealth of Australia:

Counsel: Mr R Whitington QC with Mr G Gretsas - Solicitors: Australian Government Solicitor

Defendant Television Broadcasters Ltd:

Solicitors: Fisher Jeffries

Order: Application dismissed.

DUGGAN J

1. The statement of claim filed by the plaintiff in this matter pleads various causes of action including libel. The libel is pleaded against some, but not all of the defendants and the present application is brought by the defendants in the libel action. The application is for a stay of proceedings of that action.

2. The plaintiff alleges that defamatory statements were made in a report prepared by a review committee which was established by the first defendant who was then the Minister for Community Welfare (the Minister) in the South Australian government. The plaintiff was the administrator and a member of the committee of management of the Christies Beach Women's Shelter Incorporated. The defendants seeking a stay of proceedings were all members of the committee with the exception of the ninth named defendant who was employed by the committee as an independent consultant and the twelfth named defendant, the Commonwealth of Australia, which was the employer of one of the members of the committee. The committee's report dealt with the committee's findings in relation to allegations of mismanagement of the shelter.

3. According to the statement of claim the report was presented to the Minister on 26 June 1987. The action is based on the publication by the committee to the Minister. Subsequently the report was tabled in Parliament. In a document filed before me the Clerk of the Legislative Council has certified that the report was published under the authority of the Legislative Council on 11th August 1987.

4. The application for a stay of the libel proceedings is based on s12(1) of the Wrongs Act 1936 which provides as follows: "It shall be lawful for any defendant in any civil or criminal proceeding in respect of the publication of any report, paper, votes, or proceedings of Parliament, which either House of Parliament deems fit and necessary and has authorised to be published, to bring before the Court, after giving twenty-four hours notice to the plaintiff or prosecutor of his intention so to do, a certificate under the hand of the President or Clerk of the Legislative Council, or the Speaker or Clerk of the House of Assembly, stating that the matter in question was published by order or under the authority of the Legislative Council or House of Assembly, as the case may be, together with an affidavit verifying the said certificate, and the court shall thereupon stay the said proceeding, and the same and every writ and process therein shall thereupon be put an end to and superseded, by virtue of this Act." 5. It is not disputed that the publication made under the authority of the Legislative Council on 11th August 1987 comes within the protection provided by s12(1). However it was argued by the defendants who have joined in this application that the section can also be invoked in relation to the earlier publication by the committee to the Minister and that, as a consequence, I am required to stay the proceedings.

6. In construing the section it is of some assistance to trace its legislative history and to examine the origin of its English counterpart. The Parliamentary Papers Act 1840 was enacted following the decision in Stockdale v Hansard (1839) 9 Ad and El 1. Stockdale took action for libel against the official reporter and publisher of parliamentary proceedings. The alleged defamatory statements were contained in a report of the Inspectors of Prisons which was laid before the House of Commons and, by order of the House, printed and published by the defendant. The court rejected a submission that parliamentary privilege provided a defence to the action.

7. The effect of the Parliamentary Papers Act which was enacted in the following year was to confer absolute privilege on reports and other documents and proceedings published by order of either House of Parliament. The English legislation was adopted in South Australia in Act No. 17 of 1846 and eventually re-enacted to substantially the same effect in the Wrongs Act. The preamble to the original English Act (3 & 4 Vict. c9) referred to the desirability of preventing any obstruction or impediment to the publication of material when such publication was authorised by Parliament. It stated that the legislation was essential to the effectual discharge of the functions and duties of Parliament.

8. There are very few cases dealing with the legislation but in Mangena v Wright [1909] 2KB 958 at 976 Phillimore J said of the English Act: "It seems to me that whereas under s. 1 those publishing under the direct authority of either House of Parliament are given the protection of a summary stay of proceedings, like the remedy given in favour of ambassadors under the Diplomatic Privileges Act, 1708 (7 Anne, c. 12), and those not acting under the authority of Parliament but publishing complete copies of parliamentary papers already published are given a somewhat similar remedy, those who publish an abstract or an extract only are placed in the position of having to plead the statute, and to aver and prove that their publication was bona fide and without malice." 9. In my view the history, purpose and wording of s12 all support the argument that its operation is confined to the occasion of publication which is authorised by either House of Parliament. Qualified privilege might well apply to the initial publication to the Minister in the present case, but the publication to the Minister is outside the protection of s12. The privilege attaches to the occasion of publication, not the document, and the authorisation by Parliament cannot have a retrospective effect so as to confer absolute privilege when no such privilege existed at the time of the earlier publication.

10. I should add that there is authority for the proposition that privilege extends to communications which are incidental to a privileged communication and in accordance with the reasonable and usual course of business. For example the fact that a letter is dictated to a typist prior to its transmission does not destroy any privilege which attaches to the communication by means of the letter. (Osborn v Thomas Boulter and Son [1930] 2 KBD 226; Holding v Jennings [1979] VR 289 at 292). However the forwarding of the report to the Minister in the present case was a communication separate and distinct from the subsequent publication by order of the Parliament. The first publication was not incidental in any relevant sense to the second publication.

11. For these reasons the application by the defendants for a stay of proceedings in relation to the action arising out of the publication by the committee to the Minister will be dismissed.