McMahon & Binchy, Law of Torts 4^th ed  [34.23] suggest privilege as a basis for denying liability (citing Prosser & Keeton 5^th ed p824 & Cox, Defamation Law (2007) [2.3.3]). They go on to note that, with the introduction of the Defamation Act 2009, it was not included as a form of absolute privilege, so it would have to be considered under qualified privilege.

I’m sure colleagues across the world have examples of cases of communication within family contexts being treated as protected under qualified privilege. I would suggest that communication to one’s own spouse readily fits the parameters of the defence and malice would be difficult to establish (it would be more readily established re a communication to the plaintiff/claimant’s spouse).

 

 

 

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Dear Colleagues;

While it is not directly a private law decision, I thought some may be interested in the decision of the High Court of Australia today in Namoa v The Queen [2021] HCA 13 (14 April 2021) http://eresources.hcourt.gov.au/downloadPdf/2021/HCA/13 . A unanimous decision, delivered as her first judgment by recently appointed Gleeson J, holds that a husband and wife may be found guilty of the crime of conspiracy under the Commonwealth Criminal Code s 11.5(1). The contrary argument was based on views of the crime at common law which have been supported by some decisions in other common law jurisdictions, relating to the supposed doctrine that husband and wife were “one person”. Gleeson J approaches the matter as a question of statutory interpretation, but of course considering the common law background to the word “conspiracy”, but concludes at [34] that:

 

It is unnecessary to consider whether the common law includes or included at any relevant time a rule by virtue of which the common law of conspiracy does not apply to spouses.

 

I was interested to see what I had not previously noticed, that in Midland Bank Trust Co Ltd v Green [No 3] [1982] Ch 529 the Court of Appeal had ruled that, whatever the criminal law rule, the tort of conspiracy can be committed by husband and wife. While of course this High Court decision does not formally rule on the point, the judgment generally affirms the comments in Midland Bank, so it seems pretty clear that should the tort question come before the High Court it would agree.

Which leads me to ask a question I was pondering when preparing materials on defamation! As far as I can tell, the anomalous rule that it will not amount to “publication” of a defamatory imputation if it is only communicated by the defendant to the defendant’s spouse, still seems to be a part of Australian law: see Wennhak v Morgan (1888) 20 QBD 635; recognised (obiter) as being of continuing effect in Cattanach v Melchior [2003] HCA 38; 215 CLR 1; 199 ALR 131; 77 ALJR 1312 at [63], and with more detailed comment in Roberts-Smith v Crawshaw [2014] WASC 12, a decision of Edelman J when in the WA Supreme Court. There his Honour notes that the principle was based by one of the judges in Wennhak on the “unity of husband and wife”, but also noted that other justifications could be provided:

 

14 Manisty J also decided the case on the basis of the unity in law of husband and wife. But, perhaps in light of counsel's submissions in that case that the 'identity of husband and wife' had been destroyed by the Married Women's Property Act 1882 (45 & 46 Vict c 75) (at 636) his Lordship went further to ask 'what is the real foundation' of the principle that denies that a defamatory publication occurs when the material is communicated to a spouse? (at 639) Manisty J explained that it was based upon the policy of the law respecting family relationships, saying the following: '[W]ould it be well for us to lay down now that any defamation communicated by a husband to a wife was actionable? To do so might lead to results disastrous to social life.’ (at 639)

15 Although the legal fiction of unity of husband and wife no longer exists, this does not necessarily mean that the defence has disappeared. More than a century later the editors of Gatley on Libel and Slander today suggest that 'there is something dubious in the idea that a person could be sued for defamation in respect of communications to his spouse ... it is thought that on the basis of the need to preserve privacy and confidentiality within the family it is still valid'. (A Mullis and R Parkes Gatley on Libel and Slander (12^th ed, 2013) 207 [6.14].)

 

It would be interesting to see what the High Court may say on this matter today!

Regards

Neil