Bishop v State of New South Wales [2000] NSWSC 1042

New South Wales Supreme Court

CITATION : Bishop v State of New South Wales [2000] NSWSC 1042 CURRENT JURISDICTION: Common Law Division Defamation List FILE NUMBER(S) : SC 20992/97 HEARING DATE(S) : 6 - 8 November 2000 JUDGMENT DATE : 8 November 2000

PARTIES : Noel Bishop (Plaintiff) State of New South Wales (Defendant) JUDGMENT OF : Dunford J

COUNSEL : C Evatt (Plaintiff) M Lynch (Defendant) SOLICITORS : PJ Beazley (Plaintiff) IV Knight, Crown Solicitor (Defendant) CATCHWORDS : DEFAMATION - performance by school students - circumstances in which school authorities liable - publication by consent or approval - failure to stop performance - questions for jury. LEGISLATION CITED : Defamation Act 1974, s 7A Webb v Bloch (1928) 41 CLR 331 R v Paine (1696) 5 Mod 163 CASES CITED : Seary v Molomby (unreported - 23 August 1999) Thiess v TCN Channel 9 Ltd (No. 5) [1996] 1 Qd R 156 Byrne v Deane [1937] 1 KB 818 Urbanchich v Drummoyne Municipal Council (1991) A Torts R 81-127 DECISION : See paras 22 - 25.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST DUNFORD J Wednesday, 8 NOVEMBER 2000 20992/97 NOEL BISHOP v STATE OF NEW SOUTH WALES JUDGMENT 1 HIS HONOUR: The plaintiff, Noel Bishop, has sued the defendant alleging that he was defamed in a revue type skit performed by Year 12 school boys at the Farrer Memorial Agricultural High School near Tamworth, a school conducted by the defendant's Department of School Education. 2 The Statement of Claim alleges that this skit, which I shall hereinafter refer to as "the performance", was performed on 16 October 1997, the last day of the school year for Year 12 students, before a body of students, teachers and other staff. It consisted of several sketches and the one in question is alleged to have featured two of the students, one representing the plaintiff, and the other representing another teacher, Mrs Gill, and the students playing the respective parts were introduced as representing those teachers by the compere of the show, who was a vice captain of the school. 3 It is alleged that the two students walked hand in hand up on to the stage where they put their arms about each other and pretended to engage in sexual acts such as groping, kissing, spanking, oral sex and sexual intercourse. No member of the teaching staff had any imput into the scripting, preparation or presentation of the performance. 4 The plaintiff's case is that this performance conveyed to those present in the auditorium the imputations: (a) that he engaged in lewd sexual activities with another teacher; and (b), that he had an adulterous relationship with another teacher. 5 This is the trial with a jury of the issues set out in s 7A(3) of the Defamation Act 1974 and there is a real issue under subs (4) as to whether the material relied on was published by a person or persons for whom the State of New South Wales, as represented by the Department of School Education, is liable. 6 At the close of the evidence counsel for the defendant has submitted that the matter should be taken from the jury and I should direct the entry of judgment for the defendant on the ground that there was no publication by any person for whom the defendant is liable. Subject to that issue, I have also heard submissions on the questions which should be put to the jury for their deliberation. 7 The researches of neither counsel nor myself have been able to find any case similar to the present where the authorities responsible for a school have been held liable for the defamatory imputations allegedly conveyed by students, or anything remotely resembling such a situation; and it is therefore necessary to resort to first principles bearing in mind that the students are neither agents nor servants of the school so that principles of vicarious liability relating to principals and agents or masters and servants are not applicable. 8 The general principle is that liability for publication of a defamatory matter extends to all who take part in the commission of the tort: Australian Defamation Practice at para [5170]. In Webb v Bloch (1928) 41 CLR 331 at 364, Isaacs J cited with approval a number of descriptions of publication from judgments and text writers, including one from Starkie on the Law of Libel and Slander, 2nd ed. as follows: "All who are in any degree accessory to the publication of a libel and by any means whatever conduced to the publication, are to be considered as principals in the act of publication."