At the moment, a damaging report about a living and identified individual published in a newspaper is treated no differently from a character in a novel incorporating traits which the author, consciously or unconsciously, has taken from someone known to him. The fact that the one purports to be true while the other specifically claims to be a work of the imagination should surely be acknowledged in a court of law. Given a sporting chance of establishing such a distinction as central to the defence, there would have been some point in a test case. But I was firmly advised that the law cannot tell the difference between, say, a novel by Patrick White and one of Rupert Murdoch’s human interest stories. Nothing that I could do in court would advance that issue one jot.

On top of that, I was a resident of NSW defending an action brought against me in WA. It would be heard, not by a jury, but a single judge sitting in Perth. Since the test of defamation is the opinion of an ordinary citizen, the literary background, taste, and sophistication – or lack of it – of the presiding judge could hardly fail to affect his estimate of this mythical average view. Counsel and expert witnesses for the defence would have to be flown to Perth and suitably accommodated for an indeterminate period; and at the end of it all, should the plaintiff succeed, the defence would be left not only with its own substantial costs but also those of the other side, together with damages.

I worked out that the whole thing might run to $45.000. By defending our right to publish one of our authors. I would have been gambling with our responsibilities to all the rest.

I had also to consider that Mr Davies had not taken action against my company, Currency Press Pty Ltd (or against Dorothy Hewett). The writ was served on me personally, so that I had not the protection of limited liability. To succeed the plaintiff would have had to show that I had worked on the books personally – as, of course, most small publishers do. It happened in this case that I had not; but it certainly brought home to me the vulnerability of the small publisher.

The matter was finally settled on my offer not to distribute the two plays concerned in Western Australia. There was no cash settlement and consequently no contribution from Currency Press or the author, as stated by Ms Field. Each party bore his own costs. My costs were $1,500. It meant one less playwright published that year.

Ms Field reports that some American publishers are now calling in lawyers to vet manuscripts for defamation before going to press. I do not see how that can offer much protection to the writer or publisher of fiction, including plays. How is a lawyer to know that the libidinous professor in Act Three bears a defamatory resemblance to some teacher in the author’s forgotten past, until a writ lobs on the publisher’s desk? Precisely because creative fiction offers no facts to be checked, publishers will always have to fly blind.

And even when a work has been published and republished without complaint, the publisher is still vulnerable. The Chapel Perilous was in its third printing when Mr Davies took action. A work may even become actionable because it may be read in conjunction with another work, for which the publisher of the first work is in no way responsible. This, again, was the case in the action taken against Currency.

None of this, of course, is to argue for any author’s divine right to defame. Fiction of the roman a clef variety runs obvious defamatory risks, and authors and publishers must take the consequences. But surely, in an imaginative context, where the intention is patently fictional and even the informed reader will be unable to disentangle fact from invention, a different and more exacting test for defamation should be brought to bear than that upon which the courts at present rely.

Yours sincerely

Philip Parsons, Chairman

The Currency Press Pty. Ltd.