West Australian Newspapers Ltd v Bridge

[1979] HCA 10

HIGH COURT OF AUSTRALIA

Barwick C.J., Gibbs, Stephen, Jacobs and Aickin JJ.

WEST AUSTRALIAN NEWSPAPERS LTD. v. BRIDGE

(1979) 141 CLR 535

13 March 1979

Defamation (W.A.)

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 of any act or omission, which before the time of the coming into operation of the Code constituted an actionable wrong, affect any right of action in respect thereof." The Code. "348. Any person who, by spoken words or audible sounds, or by words intended to be read either by sight or touch, or by signs, signals, gestures, or visible representations, publishes any defamatory imputation concerning any person is said to defame that person. . . . 350. It is unlawful to publish defamatory matter unless such publication is protected, or justified, or excused by law. . . . 357. It is a lawful excuse for the publication of defamatory matter - . . . (8) If the publication is made in good faith in the course of, or for the purposes of, the discussion of some subject of public interest, the public discussion of which is for the public benefit, and if, so far as the defamatory matter consists of comment, the comment is fair. For the purpose of this section, a publication is said to be made in good faith if the matter published is relevant to the matters the existence of which may excuse the publication in good faith of defamatory matter; if the manner and extent of the publication does not exceed what is reasonably sufficient for the occasion, and if the person by whom it is made is not actuated by ill-will to the person defamed, or by any other improper motive, and does not believe the defamatory matter to be untrue. . . . 360. Any person who unlawfully publishes any defamatory matter concerning another is guilty of a misdemeanour, and is liable to imprisonment for twelve months, and to a fine of six hundred dollars. If the offender knows the defamatory matter to be false, he is liable to imprisonment with hard labour for two years, and to a fine of one thousand dollars."

I should add that several sections, namely, ss. 354, 355 and 356 set out a number of matters which each of the sections expressly says "it is lawful" to publish. (at p540)

8. The rights of parties in relation to defamation as a tortious cause of action are regulated in Western Australia by the common law. The Act is an Act to establish a Criminal Code as it is said in its preamble to be "desirable to declare and consolidate the Criminal Law". (at p540)

9. It is plain to my mind from the terms of s. 5 of the Act that the provisions of the common law as to defamation are not to be impinged upon by the Act or the Code except in so far as "by the Code, any act is declared to be lawful", in which event no action may be brought in respect of the performance of that act. Section 5 thus segregates the civil law of defamation from the criminal law of defamation except in those cases in which an act is declared, and as I think, specifically declared, by the Code to be lawful. Such a declaration by the Code precludes action at law in respect of the act so declared to be lawful. (at p540)

10. Section 357 occurs in a group of sections which to my mind are plainly directed to the creation of criminal offences and the provision of defences thereto. (at p540)

11. Section 350 makes the publication of defamatory matter unlawful, in the sense of being a breach of the criminal law. Section 360, to my mind, makes this plain: it visits the unlawful publication with criminal consequences. (at p540)

12. Sections 354, 355 and 356 declare certain publications to be lawful, and, s. 5 of the Act apart, thereby ensure that such publications are not visited with criminal consequences. Were it not for the first paragraph of s. 5, I should have thought that ss. 354, 355 and 356 would have had no impact upon the common law of defamation. But that paragraph of s. 5 does ensure that what is made lawful for the purposes of the Code will not give rise to a cause of action at law. (at p540)

13. Sections 351, 352 and 353 achieve a similar result to that produced by ss. 354, 355 and 356 by the use of a different formula, namely, a described person making a particular publication is said "not to incur any liability as for defamation". Whether this formula satisfies the prescription of the first paragraph of s. 5 of the Act need not now be discussed or decided. But such sections clearly preclude criminal liability in respect of the described publications. (at p540)

14. I conclude that the excuses provided by s. 357 are relevant to s. 350 in which the word "unlawful" carries the connotation "a breach of the criminal law". As I have indicated, the terms of s. 350 supply the content to s. 360. Section 357 does not, in my opinion, provide a defence to an action at law in Western Australia for defamation. Whether or not the common law provided any kindred defence need not be considered. The plea here was limited to the precise terms of s. 357. (at p541)

15. The Court was strenuously pressed by the written arguments to hold that the provision of a lawful excuse was equivalent to a declaration of lawfulness of the act excused: that it was equivalent for the purpose of s. 5 to a declaration of lawfulness. But, in my opinion, the language and evident purpose of s. 5 is too strong to permit of a constructive declaration of lawfulness. For one thing, the language of those sections which expressly declare certain publications to be lawful, ss. 354, 355 and 356, is in high contrast to the language of s. 357. For another, to provide a defence by way of excuse is not in any case the equivalent, in my opinion, of a statement or declaration that what is excused is in itself lawful. The excuse is of an act in itself unlawful. (at p541)

16. Much emphasis was placed by the applicant on the similarity, or indeed the identity, of the relevant sections of the Act to or with sections of the Queensland Criminal Code which was interpreted by this Court in Hall-Gibbs Mercantile Agency Ltd. v. Dun (1910) 12 CLR 84 ; Ryan v. Ross (1916) 22 CLR 1 ; and Telegraph Newspaper Co. Ltd. v. Bedford (1934) 50 CLR 632 . (at p541)

17. But there is a radical difference both in the legislative history of the Queensland Code and that of this Code. Section 9 of The Defamation Law of Queensland 53 Vic. No. 12 works a significantly different operation to the former than is the case under s. 5, not affected by a like provision to s. 9. (at p541)

18. I am content to dispose of the argument based on the Queensland Criminal Code by adopting the assumptions and reasons of the Chief Justice of Western Australia with which I agree. (at p541)

19. For all these reasons and for those expressed by my brother Jacobs, I am of opinion that the Full Court was not in error in answering the first question in the negative. I would dismiss the appeal. (at p541)

GIBBS J. I have read the reasons for judgment prepared by my brother Aickin and agree with his conclusion that s. 357 (8) of the Criminal Code of Western Australia is available as a defence in civil proceedings for defamation. I am in agreement with the reasons by which my brother reaches that conclusion but since other members of the Court are of a different opinion I would add a few remarks of my own. (at p542)

2. The effect of the Criminal Code on civil remedies is dealt with by s. 5 of the Criminal Code Act, 1913 (W.A.). That section provides, inter alia: "When, by the Code, any act is declared to be lawful, no action can be brought in respect thereof." In my opinion to satisfy those words of s. 5, no formula is required. In deciding whether an act is declared by the Code to be lawful the substance and effect of the relevant provision of the Code, and not its form, has to be regarded. (at p542)

3. Section 350 of the Criminal Code provides that it is unlawful to publish defamatory matter "unless such publication is protected, or justified, or excused by law". Section 357 of the Code provides that "It is a lawful excuse for the publication of defamatory matter" if the circumstances of qualified protection set out in the following eight numbered paragraphs exist. The combined effect of those two sections is that it is not unlawful to publish defamatory matter in the circumstances set out in s. 357. To say that it is not unlawful to publish defamatory matter is equivalent in my opinion to saying that it is lawful to do so. The two sections together declare in effect that it is lawful to publish defamatory matter in the circumstances mentioned in s. 357. Therefore the publication of defamatory matter in those circumstances is not actionable. (at p542)

4. I would accordingly allow the appeal and would answer question (A) in the affirmative. Since I understand that a majority of the Court take a different view it is unnecessary for me to consider what answer should be given to question (B). (at p542)

STEPHEN J. Having had the advantage of reading the reasons for judgment of Jacobs J. I agree both with his Honour's conclusion and with his reasons for arriving at that conclusion. (at p542)

2. I would dismiss this appeal accordingly. (at p542)

JACOBS J. To an action for libel brought against it and the second respondent by the first respondent the appellant in its defence pleaded that the occasion of the publication was privileged and gave particulars of that defence in the terms of s. 357 (8) of the Criminal Code of Western Australia. That section, so far as is material provides: "It is a lawful excuse for the publication of defamatory matter -
. . . (8) If the publication is made in good faith in the course of, or for the purposes of, the discussion of some subject of public interest, the public discussion of which is for the public benefit, and if, so far as the defamatory matter consists of comment, the comment is fair." (at p543)

2. The question which arises on this appeal is whether s. 357 is applicable to civil as well as to criminal proceedings for defamation. A question to that effect was stated by the trial judge to the Full Court of the Supreme Court of Western Australia, which by majority answered it in the negative (1978) WAR 177 . The question can be put another way by asking whether s. 5 of the Criminal Code Act, 1913 (W.A.) covering the Criminal Code applies to s. 357. Section 5 provides as follows:

"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 of any act or omission, which before the time of the coming into operation of the Code constituted an actionable wrong, affect any right of action in respect thereof."

Do the words in s. 357 "It is a lawful excuse for the publication" amount to a declaration that the act of publication is lawful? On the one hand there is the precise language of s. 5 which is not satisfied. It requires that by the Code the act be declared lawful. On the other hand by s. 350 it is provided that it is unlawful to publish defamatory matter unless it is, inter alia, excused by law. Does that amount to a declaration that it is lawful to publish defamatory matter if it is excused? (at p543)

3. A number of considerations have led me to the conclusion that s. 357 is not applicable to civil actions for defamation and that the majority in the Full Court were correct. First, there is the fact that s. 357 does not in its terms satisfy the condition in s. 5. That very real difficulty could perhaps be overcome if it were clear that Ch. XXXV of the Code, dealing with defamation, was generally intended to introduce substantive principles of the general law governing actions for defamation as well as to codify the criminal law upon that subject matter. That brings me to the second consideration which has led me to my conclusion. There is nothing intrinsically clear from the language of Ch. XXXV that all its general enunciations of what was and what was not to amount to defamation and when the publication of defamatory matter was unlawful and when a person would incur liability for publication of defamatory matter were intended to apply to civil actions as well as to criminal prosecutions; and after all it is a criminal code. The basis of the submission that the general enunciations cover civil as well as criminal defamation is that three sections, ss. 354-356, expressly provide that "it is lawful" to publish defamatory matter of the kind and in the circumstances set out in those sections. Upon that basis it has been submitted that ss. 351-353, which provide that certain persons in certain circumstances "do not incur any liability" for publishing certain defamatory matter and s. 357 itself should be applicable to civil actions in the same way as the interposed ss. 354-356. However, it appears to me that the inference which should in such circumstances be drawn is that the draughtsman and the legislature framed ss. 351-354 and s. 357 in different language from ss. 354-356 with the intention of differentiating their legal effect. It is idle to speculate upon the question why s. 354 and s. 355 were introduced into the civil law and any such speculation cannot lead to a conclusion that not only those sections but other sections in their different terms were also intended to affect the civil law. As to s. 356, although in its terms and by application of s. 5 of the covering Act it applies to civil actions, it does not appear to have any operation in relation thereto. Section 356 provides that it is lawful to publish defamatory matter if the matter is true, and if it is for the public benefit that the publication complained of should be made. However, apart from that section, it is a defence to a civil action for publishing defamatory matter if the matter is true. Public benefit does not come into it. Section 5 of the covering Act, after its opening provision with which we are here particularly concerned, goes on to provide that with that exception the provisions of the Act shall not affect any right of action which any person would have had against another if the Act had not been passed. So truth remains a defence in a civil action. For an example of such a defence in Western Australia see Gobbart v. West Australian Newspapers Ltd. (1968) WAR 113, at p 115 . In the light of the second provision in s. 5, s. 356 cannot be regarded as a code on justification as a defence in a civil action and it would appear to have no area of operation in such an action. This, I think, is some indication that the whole group of sections should not be regarded as a partial codification of the civil law. One is left with an application of s. 5 to the Criminal Code according to the terms of that section. No further or other legislative intent can be divined. (at p544)

4. Further, there is not only the fact that s. 357 does not in terms fall within s. 5 of the covering Act but there is also the presumption that the legislature does not intend to alter the common law. This principle can, I think, be fairly invoked in order to answer the contention that the legislature had a purpose so to do beyond the language which it actually employed. (at p545)

5. For the contrary view the appellant has relied upon the operation which has been given to sections in the same terms in the Queensland Criminal Code. The conclusion that s. 377 of the Queensland Criminal Code (the equivalent of s. 357 in the Western Australian Code) applies to civil actions has not depended upon the Queensland equivalent (s. 6) to s. 5 of the covering Act to the Western Australian Criminal Code. It has depended upon the retention in the law of Queensland of s. 9 of The Defamation Law of Queensland (1889). That section provides that the unlawful publication of defamatory matter is an actionable wrong. Sections 8 and 10 to 17 of that Act were in practically the same terms as ss. 350-357 of the Criminal Code of Western Australia but they were repealed when the Queensland Criminal Code was enacted. That Code contained ss. 365-377 in the same terms with the exception that some words were added to s. 377 (8) (words which also appear in s. 357 (8) of the Western Australian Code). Thus the Queensland Code in s. 370 reproduced s. 8 of the Defamation Law - "It is unlawful to publish defamatory matter, unless such publication is protected, or justified, or excused by law." It was s. 8 which had given its special content to the word "unlawful" in s. 9 but then s. 8 was repealed. It was held that in this situation it became necessary to look at the sections as they had been transposed into the Criminal Code in order to give meaning and content to the words of s. 9 of the 1889 Act. This approach may not have been inevitable as Virtue J. pointed out in Logan v. West Australian Newspapers Ltd. (1968) WAR 104, at p 109 , but it was taken by this Court in Hall-Gibbs Mercantile Agency Ltd. v. Dun (1910) 12 CLR 84 and later in Telegraph Newspaper Co. Ltd. v. Bedford (1934) 50 CLR 632 . The law in Queensland is thus settled. But the same course of reasoning cannot be applied in Western Australia because of the absence of any provision equivalent to s. 9 of the Queensland 1889 Act. (at p545)

6. I would dismiss the appeal. (at p545)

AICKIN J. This is an appeal by special leave from a decision of Wickham J. in the Supreme Court of Western Australia in which he entered judgment against the appellant, the West Australian Newspapers Ltd., and one Tozer, who was also a defendant in a libel action in which the respondent Bridge was the plaintiff. (at p545)

2. The appellant had published a letter addressed to its editor by the defendant Tozer. At the trial the following questions were put to the jury:
"(i) 'Would any of the statements of fact be understood as referring to the Plaintiff?'
(ii) 'Are any of those statements of fact defamatory of the Plaintiff?' (iii) 'Was the letter published by the Newspaper in the course of, or for the purposes of, the discussion of some subject of public interest, a public discussion of which was for the public benefit?' (iv) 'Are there any statements which are comment upon statements of fact?' (v) 'If yes, would any of this comment be understood as referring to the Plaintiff?'" The jury answered the first four questions in the affirmative and the fifth question in the negative. The trial judge then referred the following questions for the consideration of the Full Court of the Supreme Court of Western Australia pursuant to s. 43 of the Supreme Court Act, 1935 (W.A.) -

"(A) Is s. 357 (8) of the Criminal 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?"

The Full Court (Burt C.J. and Brinsden J., Wallace J. dissenting) answered question (A) in the negative and did not answer question (B) (1978) WAR 177 . Upon that answer having been given by the Full Court the trial judge entered judgment against both defendants. The point which arises on this appeal is whether the answer given by the Full Court was correct. The answer depends upon the proper construction in the relevant circumstances of the Criminal Code Act, 1913 (W.A.) ("the W.A. Code Act") and the Criminal Code of Western Australia scheduled thereto ("the W.A. Criminal Code"). That legislation repealed and substantially re-enacted the Criminal Code Act, 1902 and the Criminal Code scheduled thereto. (at p546)

3. Section 357 (8) of the W.A. Criminal Code is as follows:

"It is a lawful excuse for the publication of defamatory matter - . . .

(8) If the publication is made in good faith in the course of, or for the purposes of, the discussion of some subject of public interest, the public discussion of which is for the public benefit, and if, so far as the defamatory matter consists of comment, the comment is fair." (at p546)

4. It will be observed that the third question put to the jury follows the wording of s. 357 (8) but does not refer to the element of good faith. However, the plaintiff had admitted that the publication by the appellant was made in good faith. It will, however, be necessary to refer to a number of other sections of the W.A. Criminal Code. (at p547)

5. The Criminal Code Act, 1902 (W.A.) and the Criminal Code scheduled thereto were copied almost exactly from the corresponding Criminal Code Act, 1899 and Criminal Code of Queensland. The problems which arise in the present case may be said to arise out of the fact that the Queensland Criminal Code contained a number of provisions dealing with the civil law of defamation. There had been enacted in Queensland in 1889 an Act entitled The Defamation Law of Queensland (53 Vic. No. 12) which had in effect codified both the civil and criminal law of defamation, including its procedural requirements. By the Criminal Code Act, 1899 (Q.) the substantive provisions of The Defamation Law of Queensland were repealed and re-enacted in Ch. XXXV of the Criminal Code so that, notwithstanding that it is a "Criminal Code", it applies also to proceedings with respect to the tort of defamation. (at p547)

6. Section 9 of The Defamation Law of Queensland (1889) which was not repealed, provided that: "The unlawful publication of defamatory matter is an actionable wrong." (at p547)

7. When in 1902 the West Australian Parliament enacted the Criminal Code Act, 1902 it copied without relevant alteration Ch. XXXV of the Queensland Code. In addition the somewhat unusual course was taken of publishing with the W.A. Code Act, the Criminal Code and the Criminal Practice Rules, by way of "introduction", substantial extracts from a letter dated 29th October 1897 by Sir Samuel Griffith, then Chief Justice of Queensland, by which he transmitted to the Attorney-General of Queensland a draft Criminal Code which he had prepared and which became, without significant change, the Queensland Criminal Code in 1899. However no tenable basis exists for resort to that letter as an aid to the interpretation of the Criminal Code of Western Australia. As Windeyer J. said in Mamote-Kulang v. The Queen (1964) 111 CLR 62, at p 81 when speaking of the Queensland Criminal Code: "We, of course, are concerned with the true construction of the words, not with the intention of the author." (at p547)

8. The principal material difference between the state of the law as to defamation in Queensland at the time of the passing of the Criminal Code Act, 1899 (Q.) and that in Western Australia at the time of the passing of the Criminal Code Act, 1902 (W.A.) was that in Queensland the law with respect to civil and criminal liability had been codified in 1889. In Western Australia, however, the common law applied save in so far as it had been varied by The Newspaper Libel and Registration Acts, 1884 (48 Vic. No. 12), and 1888 (W.A.). The former Act by s. 2 made privileged a report in a newspaper of a public meeting called for a lawful purpose if the report was fair and accurate, published without malice and for the public benefit. Sections 3-6 related to the criminal prosecution of newspaper proprietors and editors. The latter Act required a plaintiff to give evidence at any trial of a newspaper proprietor or editor at the risk of non-suit, imposed a limitation period and by s. 6 provided for absolute privilege in the case of a fair and accurate report of a public meeting. It provides that: "it shall be a good and sufficient defence for any person sued or prosecuted for libel published in a registered newspaper . . . to prove that the said report was fair and accurate." By the Criminal Code Act, 1902 (W.A.) ss. 3 to 6 of the 1884 Act were repealed and the words "or prosecuted" deleted from s. 6 of the 1888 Act and thus the absolute privilege of a newspaper was confined to civil proceedings, unless the Criminal Code provided for such a defence. (at p548)

9. The W.A. Code Act and the W.A. Criminal Code contain a number of provisions which are directly relevant to the present problem. The W.A. Code Act provides in s. 5 as follows:

"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 of any act or omission, which before the time of the coming into operation of the Code constituted an actionable wrong, affect any right of action in respect thereof."

The relevant sections of the W.A. Criminal Code are as follows: "It is unlawful to publish defamatory matter unless such publication is protected, or justified, or excused by law." (s. 350). The expression "defamatory matter" is defined in s. 346 as follows:

"Any imputation concerning any person, or any member of his family, whether living or dead, by which the reputation of that person is likely to be injured, or by which he is likely to be injured in his profession or trade, or by which other persons are likely to be induced to shun or avoid or ridicule or despise him, is called defamatory, and the matter of the imputation is called defamatory matter. An imputation may be expressed either directly or by insinuation or irony."

Sections 351-353 each provide that each of the persons there referred to "does not incur any liability as for defamation" by the publication of defamatory matter in the circumstances there referred to. Section 354 then provides that "it is lawful" to "publish in good faith, for the information of the public" certain reports and documents as there described. That section also defines the meaning of the expression "in good faith". Section 355 then provides that "it is lawful" to publish "a fair comment" in the various circumstances set out in sub-ss. (1) to (8) and concludes by saying: "If it is not fair, and is defamatory, the publication of it is unlawful." Section 356 then provides that: "It is lawful to publish defamatory matter if the matter is true, and if it is for the public benefit that the publication complained of should be made." Section 357 provides: "It is a lawful excuse for the publication of defamatory matter . . . if the publication is made in good faith" by the persons or for the purposes and on the occasions specified in sub-ss. (1)-(8) of that section, and the expression "in good faith" is defined. Section 358 provides for the onus of proof where a question arises whether a publication of defamatory matter was in good faith. Section 359 provides that questions of whether any defamatory matter is relevant to any other matter or whether public discussion is for the public benefit are questions of fact. Section 360 then provides that: "Any person who unlawfully publishes any defamatory matter concerning another is guilty of a misdemeanour, and is liable to imprisonment for twelve months, and to a fine of six hundred dollars." (at p549)

10. The words "it is lawful", "does not incur any liability as for defamation", "is not criminally responsible" occur in many different parts of the W.A. Criminal Code. The word "liable" is defined in s. 2 as follows: "the term 'liable', used alone, means liable on conviction upon indictment", i.e. on conviction for a crime or misdemeanour. However, there are offences which are neither crimes or misdemeanours and, where such offences may be dealt with summarily, the words used are "guilty of an offence and is liable on summary conviction" to a fine. (at p549)

11. Accordingly the expression "does not incur any liability as for defamation" in ss. 351-353 is not confined to "criminal liability". The phrase used throughout the W.A. Criminal Code, "not criminally responsible", would have been used in this instance also if that were the intention, and the word "liable" used alone would likewise convey that intention. (at p550)

12. The critical question is whether the provision in s. 357 (8) is one by which the publication there referred to can be said to be "declared to be lawful" within the meaning of s. 5 of the W.A. Code Act, or, more generally, whether only provisions which include the precise words "it is lawful" or "it is declared that (something) is lawful" fall within s. 5. It seems an unlikely intention that the W.A. Code Act requires some specific incantation before s. 5 produces the consequence that no action can be brought in respect of some specific act done to which no civil or criminal liability is otherwise attached. If the W.A. Criminal Code itself were to say that no civil or criminal liability shall arise from some specified conduct, it would not need s. 5 of the W.A. Code Act to produce the result that no action could be brought. (at p550)

13. The principal relevant expressions used in the W.A. Criminal Code in Ch. XXXV are as follows:
(a) A person "does not incur any liability as for defamation" by publication in certain stated circumstances - see s. 351 (1), (2), (3), s. 352 and s. 353.
(b) "It is lawful . . ." - see ss. 354, 355, 356.
(c) "It is a lawful excuse" - see s. 357.
(d) "Any person who unlawfully publishes any defamatory matter . . ." is guilty of a misdemeanour - see ss. 360 and 361.
(e) "A person is not criminally responsible as for the unlawful publication of defamatory matter . . ." - see ss. 365, 366 and 367.
These expressions and their equivalents are found in many sections in other chapters of the W.A. Criminal Code. (at p550)

14. In the context of s. 5 of the W.A. Code Act, which indicates that the Code is to have some effect outside the criminal law, and of the use throughout the Code of the expressions to which I have referred above, I am unable to discern any material difference in meaning or operation between the expressions "it is lawful" and "it is a lawful excuse". The contrast between the expressions "does not incur any liability as for defamation" and "a person is not criminally responsible as for the unlawful publication of defamatory matter" points very strongly towards the conclusion that the former expression includes civil as well as criminal liability. (at p550)

15. I am, with respect, unable to agree that the prima facie meaning of the word "excuse" is, as Brinsden J. says (1978) WAR, at p 185 , "to regard or judge with indulgence; pardon or forgive; overlook a fault, error etc." though those are meanings which the word may bear in some contexts. In this context, however, it seems to me to mean "to justify an action", "to obtain exemption for" or "to exempt" when used as a verb, and to mean "justification" or "exemption" when used as a noun. I find it impossible to read the words in s. 350 as meaning "it is unlawful to publish defamatory matter unless such publication is protected, or justified, or (regarded or judged with indulgence, pardoned or forgiven or overlooked) by law". In my opinion the word "excused" in that section conveys that what would, without more, be an unlawful publication of defamatory matter, is rendered lawful by the presence of some additional circumstance. (at p551)

16. In my opinion, therefore, the findings by the jury, when coupled with the admission that the appellant acted in good faith, bring the case within s. 357 (8) of the W.A. Criminal Code so that the appellant had a "lawful excuse" for the publication. For the W.A. Criminal Code so to provide is, in my opinion, for it to declare the act done to be "lawful". It follows, therefore, that no action may be brought against the appellant in respect of such publication. (at p551)

17. In the written argument submitted by the parties a number of cases are cited, but, having read them, I am of opinion that it is not necessary to discuss them here. None bear directly on the point; some deal with general propositions not open to doubt, the application of which depends on particular circumstances. I have not found it necessary to discuss the problem of construction of this legislation by reference to such cases. (at p551)

18. In the Full Court the second question did not arise for the majority because they answered the first question "No". Wallace J. took the view that as he was in the minority it was not necessary for him to deal with it. It does not appear whether it was argued in the Full Court. In the written argument no reference is made to the manner in which the second question should be answered if it arises. On the view which I take, that question does arise, but in the absence of any argument it is undesirable that I should attempt to deal with it at this stage; if necessary it can be reserved for further argument or referred back to the Supreme Court for argument there. (at p551)

Orders

Appeal dismissed with costs.