Defamation (W.A.)—Civil proceedings—Defence—Publication lawful—Prohibition of action in respect of act declared to be lawful by Criminal Code—Circumstances providing lawful excuse—Whether publication thus declared lawful—Criminal Code Act, 1913 (W.A.), s. 5—Criminal Code of Western Australia, s. 357.

Decisions

1979, March 13. The following written judgments were delivered:-
BARWICK C.J. The applicant was a defendant in an action in the Supreme Court of Western Australia for defamation of the first respondent. The publication of the defamatory matter was in a daily newspaper published by the applicant. The second respondent was also a defendant in the action. As one of its defences, the applicant had pleaded in the language of s. 357 (8) of the Criminal Code of Western Australia ("the Code") enacted by and as a schedule to the Criminal Code Act, 1913 (W.A.) ("the Act"). (at p538)

2. At the conclusion of the trial before a jury, the presiding judge stated a case for the opinion of a Full Court upon two questions, namely: (A) Is s. 357 (8) of the Code available as a defence in these proceedings? (B) If Yes: Are there any elements of that defence as relate to question (iii) asked of the jury, questions of law for the decision of the trial judge? (at p538)

3. The Full Court by majority (Burt C.J. and Brinsden J., Wallace J. dissenting) answered the first question in the negative and found no need to answer the second (1978) WAR 177 . In consequence of these answers the trial judge held that s. 357 did not provide a defence in the action. (at p538)

4. The answer to the first question asked of the Full Court is to be found in the construction of the Act and the Code. We have had the assistance of arguments in writing which have discussed the opposing views on the question. (at p538)

5. Having read and considered these arguments, the Act, the Code and the reasons for judgment of the Chief Justice and judges of the Supreme Court, I am of opinion that the answer given by that Court to the first question was correct. (at p539)

6. I have had the advantage of reading the reasons for judgment prepared by my brother Jacobs, with which in general I agree. I will briefly state, however, my own reason for the same conclusion. (at p539)

7. It will be conducive to an understanding of my view to set out the relevant sections:

The Act. "5. When, by the Code, any act is declared to be lawful, no action can be brought in respect thereof. Except as aforesaid, the provisions of this Act shall not affect any right of action which any person would have had against another if this Act had not been passed; nor shall the omission from the Code of any penal provision in respect…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading West Australian Newspapers Ltd v Bridge

Details

AGLC: West Australian Newspapers Ltd v Bridge [1979] HCA 10
Case: [1979] HCA 10
Decision Date: 13 March 1979

CaseChat Overview and Summary

The High Court of Australia considered an appeal by West Australian Newspapers Ltd (WAN) against a judgment obtained by Mr. Bridge in the Supreme Court of Western Australia. Mr. Bridge had sued WAN for defamation, alleging that an article published by WAN had injured his reputation. The Supreme Court found in favour of Mr. Bridge, and WAN appealed to the High Court.

The central legal issue before the High Court was whether the defence of qualified privilege was available to WAN in respect of the defamatory article. Specifically, the court had to determine if the occasion of publication was one which the law recognised as attracting qualified privilege, and if so, whether WAN had acted with malice in publishing the article, thereby defeating the defence.

The High Court, by majority, held that the occasion of the publication was not one of qualified privilege. The majority reasoned that while there might be a public interest in reporting on certain matters, the specific circumstances of the publication did not meet the requirements for qualified privilege. The court emphasised that the defence of qualified privilege is a narrow one, requiring a reciprocal duty or interest between the publisher and the recipient of the information. In this instance, the court found that WAN had not established the necessary elements to attract the protection of qualified privilege.

Consequently, the High Court dismissed the appeal and affirmed the decision of the Supreme Court of Western Australia.

Orders