-17Judge, holding that it was a case which ought to be left to the jury. It cited
Byrne v Deane for the theory that “by knowingly permitting such matter to
remain after reasonable opportunity to remove the same the owner of the wall or
his lessee is guilty of republication of the libel”, provided that the plaintiff was
able to introduce “evidence tending to show that respondents adopted the
defamatory matter or republished it”.39 The Court of Appeal held that it was “a
question for the jury whether, after knowledge of its existence, respondents
negligently allowed the defamatory matter to remain for so long a time as to be
chargeable with its republication, occurring when the husband and the group
with him visited the rest room and saw the writing.”40
The third case, Urbanchich v Drummoyne Municipal Council, 41
42.
contains a helpful analysis by Hunt J of the Supreme Court of New South Wales.
It was the trial of a preliminary issue as to “the capacity of the plaintiff’s case
[as pleaded] to establish his allegation that the second defendant had published
the matter complained of”. The plaintiff was the leader of an extreme right
wing group who sued, among others, the Urban Transit Authority (the second
defendant) for libel on the basis that posters bearing photographs purporting to
show him in the company of Adolf Hitler and of others in Nazi uniforms had
been glued onto certain bus shelters controlled by the Authority. His solicitors
asked the Authority to remove them but the posters remained in place for at
least a month. Relying on Byrne v Deane and Hellar v Bianco, the plaintiff
argued that he merely needed to prove notice to the Authority and its failure to
comply with his removal request within a reasonable time to establish
publication. Hunt J rejected that argument, stating:
“In a case where the plaintiff seeks to make the defendant responsible for the
publication of someone else's defamatory statement which is physically attached to
39
At 759.
40
At 759-760.
41
(1991) Aust Torts Reports §81-127.
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