Mamdouh Habib v Nationwide News [2006] NSWCA 14 (3 February 2006)

Last Updated: 25 May 2006

NEW SOUTH WALES COURT OF APPEAL

CITATION: Mamdouh HABIB v NATIONWIDE NEWS [2006] NSWCA 14



FILE NUMBER(S):
CA 20350/05
CA 20048/05

HEARING DATE(S): 3 February 2006

DECISION DATE: 03/02/2006
EX TEMPORE DATE: 03/02/2006

PARTIES:
Nationwide News Pty Ltd (Applicant/Defendant)
Mamdouh Habib (Respondent/Plaintiff)


JUDGMENT OF: Spigelman CJ Santow JA Nicholas J

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S): CA 20350/05

LOWER COURT JUDICIAL OFFICER: Nicholas J

COUNSEL:
G.O’L. Reynolds, S Chrysanthou (Applicant/Defendant)
C A Evatt, R Rasumssen (Respondent/Plaintiff)


SOLICITORS:
Blake Dawson Waldron (Applicant/Defendant)
Peter Erman (Respondent/Plaintiff)


CATCHWORDS:
PRACTICE AND PROCEDURE - DEFAMATION – Notice of Motion – In proceedings arising from publication of defamatory matter prior to commencement of Defamation Act (2005) – Whether form of procedure contained in s7A, Defamation Act (1974), has been replaced by that in s21 and s22, Defamation Act (2005) for pre-commencement actions – Interpretation of Defamation Act (2005), sch 4; cl 2 – Interaction of transitional provisions and s21 and s22 – Discussion of presumption against retrospectivity and procedural provisions – Whether the expression, “the determination of civil liability” in Defamation Act (2005), sch 4; cl 2 encompasses substance and procedure
WORDS AND PHRASES – “the determination of civil liability”

LEGISLATION CITED:
Defamation Act (NSW) 1974: s 7A
Defamation Act (NSW) 2005: ss 21, 22, sch 4; cl 2
Interpretation Act (NSW) 1987: s 30

DECISION:
Notice of motion dismissed.


JUDGMENT:

- 3 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 20350/05

CA 20048/05

SPIGELMAN CJ

SANTOW JA

NICHOLAS J

Friday 3 February 2006

Mamdouh HABIB v NATIONWIDE NEWS

Judgment

1 SPIGELMAN CJ: In these proceedings the Defendant has taken out a Notice of Motion seeking, as primary relief, an order that the listing of this matter for hearing pursuant to s7A of the Defamation Act 1974 (“the 1974 Act”) be set aside. That hearing is set down for Monday next. The basis of this application raises a matter of considerable significance for defamation practice in this State and has, accordingly, been referred to this Court for decision.

2 The primary submission of the defendant is that the form of procedure provided in s7A of the 1974 Act is no longer applicable and has been replaced by s21 and s22 of the Defamation Act 2005 (“the 2005 Act”). Under s7(3) of the 1974 Act a jury determined certain limited matters: whether the matter complained of carries the imputation and if it does, was the imputation defamatory. Under the 2005 Act the jury determines all matters other than damages.

3 The issue must be decided on the proper interpretation of the transitional provisions contained in sch 4 of the 2005 Act. Clause 2 provides:

“2 Application of this Act

(1) This Act applies to the publication of defamatory matter after the commencement of this Act, unless subclause (2) provides otherwise.

(2) The provisions of this Act (other than this clause) do not apply to a cause of action for the publication of defamatory matter that accrues after the commencement of this Act (the post-commencement action) if:

(a) the post-commencement action is one of 2 or more causes of action in proceedings commenced by a plaintiff, and

(b) each cause of action in the proceedings accrues because of the publication of the same, or substantially the same, matter on separate occasions (whether by the same defendant or another defendant), and

(c) one or more of the other causes of action in the proceedings accrued before the commencement of this Act (a pre-commencement action), and

(d) the post-commencement action accrued no later than 12 months after the date on which the earliest pre-commencement action in the proceedings accrued.

(3) The existing law of defamation continues to apply to the following causes of action in the same way as it would have applied to those causes of action had this Act not been enacted:

(a) any cause of action that accrued before the commencement of this Act,

(b) any post-commencement action to which the other provisions of this Act do not apply because of subclause (2).

(4) In this clause, the existing law of defamation means the law (including all relevant statutory provisions and principles and rules of the general law) that applied in this jurisdiction to the determination of civil liability for the publication of defamatory matter immediately before the commencement of this Act.”

4 The critical words for present purposes are the words in s2(4), namely “the determination of civil liability”.

5 Mr G Reynolds SC, who appears for the Defendant, has invoked what he submits is a presumption that laws dealing with procedure have no retrospective effect. He also submits that on their proper interpretation the words, “the determination of civil liability”, in their context, do not extend to matters of procedure.

6 He relies as authority for his basic proposition that there is a presumption of the character for which he contends, on the decision of the Full Court of the Supreme Court of this State in Zollner Limited v Municipal Council of Sydney (1917) 17 SR (NSW) 164 at 167.

7 I strongly doubt that there is a presumption of the character for which he contends. It is more accurate to say that there is a presumption against retrospectivity to which statutes affecting procedure are an exception. This appears to be consistent with subsequent High Court authority, particularly the judgment applied many times in Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261 at 267 and 268, and the joint judgment in Rodway v R [1990] HCA 19; (1990) 169 CLR 515 at 518 and 519.

8 It is not necessary in the present case to resolve any such dispute. As Dixon CJ emphasised in Maxwell v Murphy at 268, the issue falls to be determined as to the effect of the repeal of the 1974 Act; the normal effect being that the repealed provision must be treated as never having been enacted. This is a matter that has been affected throughout the Commonwealth and States of Australia by the respective Interpretation Acts, relevantly in New South Wales the Interpretation Act 1987 s30. I do not need to invoke any part of that section in these proceedings. The matter can be determined on the proper interpretation of the transitional provisions of cl 2 of sch 4, as set out above.

9 In my opinion the words “the determination of civil liability” in this context, extending as they do to all “statutory provisions, principles and rules of the general law”, should be understood to encompass matters both of substance and procedure. In its natural and ordinary meaning the word “determination” is capable of extending in that manner.

10 Mr Reynolds submitted that there was some kind of “ambiguity” in this respect and, upon the basis of the existence of such an ambiguity, he invoked the presumption. I do not believe such a series of steps is warranted in the course of statutory interpretation. The question for this court is to determine the proper meaning of the words. Presumptions are useful, whether or not they are called presumptions, when they invoke some kind of shifting of the onus, or are called canons of construction, which do not invoke any such idea. Notwithstanding the utility of presumptions they do not determine interpretation. The process in all cases is to apply the various rules, canons, maxims or presumptions of the law of statutory interpretation to the particular words of the statute under consideration.

11 In this case, cl 2 of sch 4 makes it quite clear from its first subclause that the Act is to apply to the publication of defamatory matter after the commencement of this Act. That clause would have no work to do unless it was intended to establish the proposition that the Act does not apply to defamatory matter that was published before the commencement of the Act. That that was the intention is reinforced by the provision in s2 of cl 2 which, in a case of what Mr Reynolds evocatively referred to as a straddle situation, applies the pre-commencement rule rather than the post 1 January 2006 rule.

12 Clause 2 must be read as a whole. Subclauses 3 and 4 are part of a scheme which includes subclauses 1 and 2. In that context it is, in my opinion, clear that the intention of the legislature was to ensure that the provisions, both substantive and procedural, of the 1974 Act would apply to publications which occurred prior to 1 January 2006 and, subject only to cl 2(2) of sch 4, the new Act would apply and apply only to publications subsequent to 1 January 2006.

13 Accordingly, in my opinion, the notice of motion should be dismissed with costs.

14 SANTOW JA: I agree.

15 NICHOLAS J: I agree.

16 SPIGELMAN CJ: The order of the Court is the Notice of Motion is dismissed with costs.

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LAST UPDATED: 25/05/2006