13.1 In DP 32 the Commission suggested changes to several procedural issues which are involved in defamation trials with a view to ensuring their speedier and more effective resolution.1 In particular, the Commission looked at shorter limitation periods; express powers to strike out actions; the use of stop writs; and filing agreed statements of issues and witnesses’ statements. The Commission has nothing to add to what was said in DP 32 about the filing of agreed statements of issues and witnesses’ statements, the latter being a procedure already in use in the Supreme Court’s Defamation List.2 The other procedural issues are revisited in this Chapter.
LIMITATION PERIOD FOR DEFAMATION ACTIONS
13.2 Generally speaking, limitation periods for the commencement of actions arise out of considerations of fairness to the defendant and the orderly administration of justice.3 They aim to balance the interests of potential defendants who cannot be expected to have the threat of proceedings hanging over them for an indeterminate period, with the interest of plaintiffs who need time to establish and prepare their cases.
13.3 Currently the limitation period for actions in defamation in New South Wales is six years from the date of publication of the matter which is the subject of the complaint.4 A similar period exists in other Australian jurisdictions,5 although in Western Australia a libel action against a newspaper or any person responsible for its publication must be brought within twelve months of that publication.6 The Defamation Bill 1992 (NSW) proposed amendments to the Limitation Act 1969 (NSW) to provide for a limitation period in defamation actions of six months from discovery of publication of the defamatory matter, subject to a maximum of three years from date of publication.7 The policy argument behind such a proposal is that the law should encourage persons whose reputations have been injured to attempt to vindicate their reputations at the earliest possible opportunity.8
13.4 Arguments for shortening the limitation period for defamation actions are more compelling than in the case of other tort actions. Once the material has been published to a third person, the defamation has occurred and the injury is apparent. In cases of personal injury or damage to property, the consequences of the injury sustained may take several years to manifest themselves, making a longer limitation period more appropriate. Although a plaintiff needs time to prepare a case (and a potential defendant to collate evidence), research indicates that most defamation actions are commenced promptly,9 so a shorter limitation period would not be unduly onerous on the parties involved. If plaintiffs are genuine in their attempt to restore reputation, they will want to do so quickly.
13.5 In respect of actions for a declaration of falsity, the Commission has recommended that a shorter limitation period apply.10 In other cases, we support a shortening of the limitation period within the following parameters:
- We believe that the limitation period should run from the date of publication, not from the date of the plaintiff’s discovery of the publication. To change to the date of discovery would make it virtually impossible for a defendant to defend a defamation action given the mobility of the media and the failing memories of witnesses. From a practical perspective, it would also raise difficulties for the parties to prove or disprove when discovery of publication actually occurred.
- We recognise that the selection of an “appropriate” period of limitation is necessarily an arbitrary exercise. We believe that a one-year limitation is appropriate and reasonable for most defamation actions, nothwithstanding the six-month limitation period generally favoured in the submissions which we received on this topic.11
- Because of the artificiality of the exercise, we favour giving courts a discretion to extend the limitation period where the interests of justice require, subject to a maximum of three years from the date of publication.
EXPRESS POWER TO STRIKE OUT DEFAMATION ACTIONS
13.6 This issue was raised in DP 32 because the Defamation Bill 1992 contained a “want of prosecution” provision that proposed that the court could strike out proceedings if it considers that the plaintiff has failed to prosecute the proceedings for a year, or has shown disregard for an interlocutory order made in relation to the proceedings or an unwillingness to comply promptly with an interlocutory order. The provision of an express power to strike out was included in the Defamation Bill in response to criticism of the allegedly narrow way in which the Court of Appeal has interpreted its existing powers to strike out actions.12 There was considerable support in submissions to the Commission for giving the court an express power to strike out defamation actions for want of prosecution or excessive delay on behalf of a plaintiff.13 There was also support in the submissions received for specifically defining “excessive delay”.
13.7 The power to strike out actions in defamation cases is applied in the same way as the power to strike out actions generally.14 The court must exercise its discretion in such a way as to do that which in the whole of the circumstances of the particular case is just between the parties, there being no fixed formulae as to how the discretion should be exercised.15 The Commission considers that this interpretation of the striking out power is appropriate and sufficient to deal with dilatory or defaulting plaintiffs.16 We are not persuaded that there should be a specific power in defamation cases to strike out actions on some wider basis than this.
THE MYTHOLOGY OF THE STOP WRIT
13.8 An injunction will not usually be granted to restrain the publication, or further publication, of matter which is alleged to be defamatory because it will have the effect of inhibiting freedom of speech.17 An action for damages for defamation may, however, be commenced with the sole or dominant purpose of gagging further discussion of a particular subject. Such an action is known as a “stop writ”. It relies for its efficacy principally on fears of the defendants and other potential publishers of the material of subjecting themselves to liability either for contempt of court or aggravated damages.
13.9 The idea that the commencement of a defamation action can “stop” the publication of material is based on a misconception of the law of contempt. The commencement of proceedings does not, of itself, make the publication of matter concerning the subject-matter of the litigation a contempt of court.18 Contempt only occurs where the clear tendency of the publication is to interfere with the due administration of justice.19 Where the subject-matter of the proceedings is a matter of public importance, the public interest may well override any possible prejudice of a litigant in favour of free discussion.20
13.10 The republication of defamatory material exposes the defendant to the risk of aggravated damages where republication is, in the circumstances, improper, unjustifiable or lacking in bona fides.21 But this risk is present in the republication of any defamatory material, regardless of the motive with which the plaintiff has commenced the defamation proceedings. That risk must, therefore, be weighed up by the defendant in every case.
13.11 Although there is a perception that some defamation actions are commenced to curtail discussion on a particular issue,22 there is no empirical evidence to suggest the prevalence or otherwise of the issue of “stop writs”, simply because it is impossible to ascertain the plaintiff’s motivation for instituting proceedings.23
13.12 From a practical point of view the only effective way of controlling the issue of “stop writs” is by education. In 1987, the Australian Law Reform Commission pointed to the benefits of giving journalists careful and thorough training in the law of contempt.24 The Commission agrees. Beyond this, parties to defamation proceedings can reduce the incidence of “stop writs” by being aware, and making more use, of the court’s existing power to dismiss matters for want of prosecution where there is an obvious and continuing failure to comply with directions, or to proceed with the matter generally.
PROCEDURAL RULES
13.13 The procedural consequences of adopting many of the Commission’s recommendations will clearly require amendment of some of the Rules of Court relating to the conduct of defamation actions. This probability should be kept under review.
FOOTNOTES
1. NSW Law Reform Commission, Defamation (DP 32, 1993) at Chapter 5.
2. See DP 32 at paras 5.32-5.34.
3. See F A Trindade and P Cane, The Law of Torts in Australia (2nd ed, OUP, Melbourne, 1993) at 741.
4. Limitation Act 1969 (NSW) s 14.
5. DP 32 para 5.4.
6. Newspaper Libel and Registration Act 1884 Amendment Act 1888 (WA) s 5.
7. Defamation Bill 1992 (NSW) cl 73, Sch 4.
8. Attorneys General of NSW, Queensland and Victoria, Discussion Paper on Reform of Defamation Law (August 1990) para 3.5.
9. A recent study of cases in New South Wales found that approximately 80% of matters were commenced within six months of publication; only 7.9% were commenced more than twelve months after publication. See T Sourdin, “A Study of Defamation Proceedings Commenced in the New South Wales Supreme Court for the period 1.1.87 to 13.12.88” (unpublished paper, University of NSW, 1990) at 10-14. These figures were based on a sample size of 264 actions commenced between 1 January 1987 and 31 December 1988.
10. See para 6.33.
11. Consolidated Press Holdings, Nine Network Australia, Communications Law Centre, the Australian Society of Authors: Submissions.
12. Parliament of New South Wales, Legislative Assembly, Report of the Legislation Committee on the Defamation Bill 1992 (October 1992) at 30.
13. Australian Press Council, Nine Network Australia, Consolidated Press Holdings, Young Lawyers, Australian Broadcasting Commission: Submissions.
14. Razvan v Berecht (Court of Appeal, NSW, 23 February 1990, CA496/87, unreported).
15. Stollznow v Calvert [1980] 2 NSWLR 749 at 752-753.
16. See, for example, Burke v TCN Channel Nine Pty Ltd (SC, NSW, 16 December 1994, CLD10688/89, Levine J, unreported).
17. See para 6.54.
18. Wallersteiner v Moir (1974) 1 WLR 991 at 1004-1005 per Lord Denning MR.
19. See Hinch v Attorney-General of Victoria (1987) 164 CLR 15.
20. Ex parte Bread Manufacturers Ltd; Re Truth & Sportsman Ltd (1937) 37 SR (NSW) 242.
21. See para 7.18. See further H McGregor, McGregor on Damages (15th ed, Sweet & Maxwell, London, 1988) at paras 1669-1670.
22. The suggestion that they occur is, in the opinion of the Young Lawyers, a misconception promulgated by journalists and the media (see Young Lawyers: Submission (29 October 1993) at 14).
23. See DP 32 at paras 5.20-5.21.
24. Australian Law Reform Commission, Contempt (ALRC 35, 1987) at para 265.
