58. Comment on the historical development of the law we are asked to review will emphasis the comparatively recent development of this branch of the law as well as its fluidity, and tend to show that the complaint in paragraph 57 of a deterioration in the position of the defendant to such an action is in a measure justified.

59. Before the sixteenth century the rule was that "it is not used in this realm that pleas of defamation should be pleaded in the King's Courts" (Rotuli Parliamentorum, 1.133). Major matters were dealt with in the ecclesiastical courts or the Star Chamber, and it was not until the English Reformation that there was any alteration in the position. The courts at first only recognized a few classes of words as actionable and only at the end of the sixteenth century reached the position that words outside these classes were actionable if actual damage was proved. In the main the Court of Star Chamber was left to deal with libel, and mainly as a criminal matter, until its abolition in the middle of the seventeenth century. In the latter half of the century the rule is tentatively formulated that libel, as distinct from slander, is a tort in the common law courts as well as a crime, even if no actual damage is proved and the words are outside the classes of slander which are actionable without proof of damage. But the law remains on this subject in what Fifoot has called a "state of suspended animation" (C.H.S. Fifoot, "History and Sources of the Common Law" (1949) 132) till the beginning of the nineteenth century. The position of the plaintiff in an action for defamation down to this time is clearly beset with difficulties. Libel as a tort is vague and undeveloped; if he sues for slander he must show the words fall within a few narrow categories or undertake the onerous task of proving actual damage. But in any case he faces the limitless possibilities, at least down to the beginning of the eighteenth century, of the rule that if a non-defamatory meaning can by any stretch of the imagination be put upon the words, it will be done - they will be understood in mitiori sensu. It was by exploitation of this rule that the flood of actions which had threatened to develop was reduced to small proportions by the early eighteenth century.

60. The later eighteenth century was marked by a retreat from the discouragement of plaintiffs involved in placing strained non-defamatory interpretations upon the words complained of and by the working out of means of protection for defendants upon more rational bases. Lord Mansfield laid the foundations of the modern defence of qualified privilege by holding that there were some circumstances which so far excused defamatory utterance that the plaintiff could not succeed without showing actual malice. The accused in criminal proceedings came to be protected at the close of the century by the provision in Fox's Libel Act (32 Geo. III c. 60 (1792)) for the jury rather than the judge to pronounce on the general question of whether the matter was libellous so that views unpopular with the establishment might be assessed at the hands of those unconnected with it. The principles of Fox's Act came to be applied to civil trials. The late eighteenth and early nineteenth centuries also saw the beginnings of the defence of fair comment on a matter of public interest (Fifoot, op. cit. 136).

61. As the nineteenth century progressed, however, doctrines developed which made defence to an action, or indictment, more difficult. It became established that the allegation of malice in the declaration, except where the occasion was privileged, was purely formal and the tort was established in that way as one of strict liability. It has been argued by Sir William Holdsworth that this rule was not applied to cases where the defendant did not intend to refer to the plaintiff at all until the twentieth century when the application was the result of confusion ("A Chapter of Accidents in the Law of Libel" (1941) 57 L.Q.R. 74). But in the twentieth century it was so applied, first in cases where the matter was of a scandalous nature (Hulton & Co. v. Jones (1910) A.C. 20) and then later to cases where the matter was not apparently scandalous nor apparently referred to the plaintiff but became so by reason of circumstances of which the defendant could not reasonably be aware (Cassidy v. Daily Mirror Newspapers (1929) 2 K.B. 331, Hough v. London Express Newspaper Ltd.(1940) 2 K.B. 507). Just as the rule establishing the necessity for actual malice in cases of qualified privilege operated in a converse way to render liability for non-privileged utterance strict or absolute, so the protection held out to the defendant in Fox's Libel Act also rebounded on defendants by eventually preventing the court from controlling the jury in the defendant's interest through holding that words were not defamatory despite the jury's holding that they were. According to Lord Blackburn, this was not the intention of the legislation, nor its proper interpretation, its effect being only to prevent the Court holding that words were defamatory when the jury considered they were not (Capital and Counties Bank v. Henty (1882) 7 App. Cas. 741 per Lord Blackburn at 771-787). But after 1852, legislation simplified the task of the plaintiff by dispensing with the requirement that he set out in his declaration the facts which raised any innuendo he alleged (Common Law Procedure Act, 1852, s. 61 adopted in New South Wales by Common Law Procedure Act, 1853, s. 56, now Common Law Procedure Act, 1899, s. 72). After this, Lord Blackburn says, it was more difficult for the court to perform its traditional function in controlling the jury's holding that words were defamatory and, despite Lord Blackburn's protests, the law came to be that the function of the judge was only to declare if words were capable of a defamatory meaning and the jury determined whether they were - a position which again was not clearly developed till the twentieth century. (See Gatley on Libel and Slander (6 ed. 1967) at 119 disapproving Lord Halsbury's statement of the law in Nevill v. Fine Arts Co. (1897) A.C. 68 at 72 which followed Lord Blackburn's view, on the basis of Lord Reid's remarks in Lewis v. Daily Telegraph Co. (1964) A.C. 234 at 259). The matter came to be of increasing importance since the development corresponded with the shift from criminal to civil emphasis in libel. This meant a diminution in the necessity for protection of accused against governmental oppression, combined with an increasing necessity for protection of a defendant representing possibly an unpopular interest against a plaintiff representing possibly an interest popular with the general public and hence with the jury - the problem represented in an acute form by New York Times v. Sullivan ((1964) 376 U.S. 254, discussed supra para. 29). We have already mentioned evidence of growth in the size of verdicts associated with this shift (Supra para. 7).

62. The increasing stringency of the pressures on the defendant in a civil action arose as much from statutory as from the mainly common law developments so far noticed. In New South Wales the statutory history begins with the Defamation Act (sometimes called the Injuries to Character Act) 1847 (11 Vict. No. 13), which institutes significant departures from the common law and significant divergences from the law as it was to remain in England. By the first section the distinction between the actionability of libel and slander is abolished by assimilating slander to libel. No longer will it be necessary for the plaintiff in an action for slander to prove actual damage or to show that the words complained of belong to one of the special classes actionable per se. This remains the law to the present time (See now Defamation Act, 1958, s. 10) in contrast to that in England. A similar contrast exists by virtue of a succeeding section of the 1847 Act (s. 4) which deprived the defendant of the defence of truth, always a defence in civil actions at common law since the time of recognition of the tort, and substituted the rule that “where the truth of such matters charged shall be relied upon as a defence to such action it shall be necessary for the defendant in his plea of justification to allege that it was for the public benefit that the said matters charged should be published”. This, too, remains the law (See now Defamation Act, 1958, s. 16). As if by way of compensation, a limited defence of apology (s. 6) and a right to give apology in evidence in mitigation of damages (See now Defamation Act, 1958, ss. 21 and 22) were given to the defendant by the Act.

63. From the time of the 1847 Act onward defendants to defamation actions benefited by having the scope of certain privileges to report, for example judicial proceedings, set forth in statutory form, though it does not seem the privileges were more broadly defined than at common law. The pattern was in any case by the late nineteenth century established of a broad tort of strict liability, the declaration in which did not need to set out the precise facts from which the defamatory innuendo was supposed to arise, by contrast to the days when the plaintiff had to show a cause of action, at any rate in slander, within specific categories of actionable words or show damage. By now it was the defendant who must find a specific defence, but except for truth and public benefit, he might generally raise his defence under not guilty without special plea. In the twentieth century this came to be no longer the case. The now Chief Justice of the Supreme Court explained (in Thornton v. Lang (1945) 62 W.N. 164) that prior to 1934 it was the practice to raise the defence of fair comment under the general issue, but that as a result of the decision in Goldsbrough v. John Fairfax & Sons Ltd. ((1934) 34 S.R. 524) Rule 78A was passed requiring the defence to be specially pleaded. The Chief Justice pointed out that Rule 78A did not seek to point out the form which the plea must take (At 164). Nor have its successors (The subsequent history down to the promulgation of the present Order XXX, r. 30A in 1962 is outlined by Sir Gordon Wallace in Orr v. Isles (1964) 82 W.N. (Pt. 1) 103 per Wallace, J. at 106) and, in view of the uncertainties of the law of fair comment, the defendant has since been faced with the likelihood of interlocutory applications testing his pleas. This pleading provision is no doubt one source of the technicality in procedure in New South Wales of which judicial complaint has been made (See supra paras. 19 and 37). In 1962 Order XXX rule 30A was reformulated to extend beyond fair comment and to provide generally that "in an action for the publication of defamatory matter defences of protection, justification or excuse by law shall be pleaded specially". This has projected the difficulties of the substantive law in relation to other defences on to the pleading plane, and led likewise to the defendant having to face interlocutory applications testing his pleadings.

64. On the whole it may seem that the passage of the Defamation Act, 1958 tipped the balance further against the defendant so as to add to the cumulative effect of the factors so far considered. The scope of defamation was extended beyond publications which attacked personal reputation to cover, to a somewhat indefinite degree, publications which were likely to do the plaintiff harm in his trade or profession, (s. 5) buttressing the protection already provided by the tort of injurious falsehood. The definition of publication made it possible to argue that publications to a spouse had become defamatory (s. 8). The moribund crime of libel was extended to cover all defamatory matter so that slander became criminal (s. 26). Court reporting in periodicals and over the air was restricted by the requirement that it should be contemporaneous (s. 14(3)). To offset these new concessions to the protection of reputation, a privilege was granted on the other hand to report public meetings (s. 14(i)(j)), as were some further doubtful privileges of import so vague as to have been productive thus far only of unsuccessful attempts by defendants to rely upon them and a crop of pleading and procedural difficulties (ss. 17(c) and 17(h)), some special immunities from criminal proceedings and, in the case of certain sellers and employers, immunities from civil proceedings (ss. 34-36).

65. It is in the light of this history that we now proceed to examine the provisions of the Defamation Act, 1958, and to canvass suggestions for reform.