Qualified privilege: consideration
73 The defence of qualified privilege protects the publication of a statement notwithstanding that it is false in fact, and injures the reputation of another, provided the statement is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. If the statement is fairly warranted by any reasonable occasion or exigency, and the statement is honestly made, it is protected for the common convenience and welfare of society: Toogood v Spyring (1834) 1 Cr M & R 181 at 193; [149 ER 1044 at 1049-1050], applied by Gleeson CJ, Hayne and Heydon JJ in Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; (2004) 78 ALJR 346 at [9]; see also McHugh J at [53]; Gummow J at [136]; Kirby J at [187]; Callinan J at [231].
74 The expression "welfare of society" used in Toogood v Spyring means that the interests of society in general require that a communication made under the particular circumstances to the particular person should be protected: Bashford at [54] (see also Gummow J at [137])
75 The duty or interest must exist in fact. A mere belief in its existence is not sufficient: Adam v Ward [1917] AC 309 at 334; see also Bonette v Woolworths Ltd (1937) 37 SR (NSW) 142 at 148 per Jordan CJ; Bashford at [71] per McHugh J. As Lane J said in Beach v Freeson [1972] 1 QB 14 at 25, "it seems contrary to principle that the existence of qualified privilege should depend on the mistaken belief of the defendant".
76 Furthermore, interest for the purpose of the law of qualified privilege means "more than an interest in the information 'as a matter of gossip or curiosity'…[it] must be a social, moral or economic interest that is sufficiently tangible for the public interest to require its protection": Bashford at [71] per McHugh J.
77 Brennan J explained how the "interest" established must transcend curiosity in Stephens v Western Australian Newspapers Limited [1984] HCA 45; (1984) 182 CLR 211 at 242, saying:
"When it is said that a publication is privileged because it is made in the public interest, 'interest' is not to be equated with curiosity. It is used in a non-technical sense to mean that the publication is made for the welfare of society. As Bedford's case illustrates, a publication defamatory of the plaintiff is not made on an occasion of qualified privilege merely because the person or persons to whom it is made - in that case, the readers of the newspaper - were interested in the subject matter."
78 In order to determine whether a publication was made on an occasion of qualified privilege, the court examines all the circumstances of the case. These include the nature of the defamatory communication, the status or position of the publisher, the number of recipients and the nature of any interest they had in receiving it, and the time, place and manner of, and reason for, the publication. After considering these matters, the court makes a judgment as to whether the publisher had a duty or interest that justified making the publication and whether the recipients, or some of them, had a duty to receive or interest in receiving it: Bashford per McHugh J at [54]; see also Gleeson CJ, Hayne and Heydon JJ at [10]; Gummow J at [139]; Callinan J at [235].
79 In order to establish a publication was made on an occasion of qualified privilege, the publisher must call evidence which establishes "that both the givers and the receivers of the defamatory information had a special and reciprocal interest in its subject matter, of such a kind that it was desirable as a matter of public policy, in the general interests of the whole community of New South Wales, that it should be made with impunity, notwithstanding that it was defamatory of a third party": Andreyevich v Kosovich (1947) 47 SR (NSW) 357 at 363 per Jordan CJ; applied in Bashford by McHugh J at [55]; by Gummow J at [140].
80 The appellant submitted that the matter complained of was published on an occasion of qualified privilege because there was the relevant reciprocity of duty or interest between him and the Council about matters relevant to local government issues. As I understand Mr Campbell's submission, an occasion of qualified privilege arose for two reasons. First, because of the Council's pivotal role in the rezoning of Dural Village. Secondly, because the appellant's statement, that investigations were required into the respondent's connection with the Council, should be treated as analogous to reporting a suspected crime.
81 In relation to the first matter, Mr Campbell submitted that the appellant had a duty or interest to communicate to the Council that the respondent was "whiteanting the council meeting" so that the Council would realise that those attending the meeting may be misinformed about the nature of the proposed rezoning.
82 Mr Campbell argued that the appellant was concerned that the integrity of the Council meeting was being eroded by people being encouraged to attend the meeting "up in arms against the Council and the landowners". He also pointed out that the appellant had discovered that the meeting was not to be chaired by an independent person but, rather, by a representative of an organisation called Nexus which was associated in some unexplained way with the respondent. Accordingly, he determined that that person was inappropriate to chair the meeting. The appellant wrote the matter complained of, he submitted, to draw to the Council's attention the fact that the meeting would not be attended by "dispassionate interested people".
83 In relation to the inclusion of the statement concerning the necessity for an investigation into the respondent's connection with the Council, Mr Campbell drew attention to the following passage in the appellant's cross-examination:
"LITTLEMORE: Q. Surely, Mr Moit, you can see that there is no logic in an answer that says 'My motive was to have the Chairman of the meeting changed. Therefore, I wrote a letter accusing Andrew Bristow of criminality'. Now, how could that do it?
A. It was just to expose the whole situation and that was the frame of mind that I was in and that was to expose the whole situation that I felt there was a lot of activity which was undue."
84 The following exchange is also germane:
"Q. … You tell us on your oath that the only reason you wrote exhibit A was because you wanted to change the Chairman of the meeting on 26 October at St Jude's Hall. Is that correct?
A. Yes, and to expose the situation.
Q. What situation.
A. Well, like, that's how I felt. I had found that Nexus Environmental was going to be chairing that meeting that afternoon … we had asked for an independent facilitator and then I found that Nexus Environmental had represented Andrew Bristow in the past or some issue which actually really stirred up, yeh, my emotion and, yeh, how I felt."
85 Mr Campbell also submitted that what was concerning the appellant was the relationship between the respondent and one of the Councillors and that he had found out that the respondent was a major source of political campaign funding to one of the Councillors. He submitted that the appellant's question in the matter complained of about the relationship of the respondent with the Council flowed from the three hats the respondent was wearing as, respectively, President of the Ratepayers Association, a major campaign funder to a Councillor and a person with a contract with the Council. He submitted that a ratepayer was entitled to query whether there was an untoward relationship between a contractor and a council. He submitted that the appellant had a duty or interest of a social or moral nature to raise questions concerning that relationship.
86 Mr Littlemore submitted that the primary judge was correct in concluding that the appellant had failed to demonstrate the essential duty/interest relationship. He submitted that the primary judge had found that that relationship did not exist because the appellant's admitted purpose was to discredit the respondent in order to remove him, or a person perceived as an associate as Chairman of the public meeting. Accordingly, the matter complained of had been published as part of an improperly motivated attack on the respondent's character, not as an exercise of the appellant, as a resident, "complaining about a local government matter". He submitted that the primary judge was correct in concluding that the mere fact that the appellant's attack on the respondent may have been "interesting" to the Councillors, did not mean that it satisfied the requirement of definite or tangible interest essential to an occasion of qualified privilege.
87 Mr Littlemore submitted that even though the primary judge had concluded, on the issue of malice, that the appellant honestly believed that the respondent was acting dishonestly by circulating false information as to the effect of any proposed changes in the use of Dural Village, that did not elevate the publication of the matter complained of to an occasion of qualified privilege. He submitted that the occasion of qualified privilege had to be established in fact and that the appellant's belief in its existence was not sufficient.
88 Insofar as imputation (c) was concerned, Mr Littlemore submitted that the primary judge correctly found that no occasion of qualified privilege had been established in circumstances where the appellant was calling for an inquiry without first making any, or any adequate, inquiry of his own about Council building contracts.
89 Although Mr Campbell at first submitted that the primary judge had erred in considering the qualified privilege defence in relation to each he appeared to accept in argument, that there could, in fact, have been two occasions of qualified privilege; a communication to the Council on the issue of land rezoning and a communication with the Council relevant to its responsibility to investigate any untoward dealings in connection with its affairs.
90 In my view the appellant has not established that the primary judge erred in concluding that the matter complained of was not published on an occasion of qualified privilege. In relation to imputation (b), it is clear that the primary judge concluded that the appellant did not publish the matter complained of because of either a duty or interest would found an occasion of qualified privilege but, rather, because of a "curiosity of the legalities of what was occurring and the way things were going". As I have already explained, an "interest" founded on "curiosity" will not suffice to establish an occasion of qualified privilege.
91 Insofar as imputation (c) is concerned, it might be accepted that a communication concerning a suspected crime would, in most cases, be on an occasion of qualified privilege. However, even in that context the question whether there was such an occasion in fact, will turn on whether the statement was made "bona fide in the prosecution of an inquiry into a suspected crime" (Padmore v Lawrence (1840) 11 Ad & El 380; (1840) 113 ER 460 at 461 per Coleridge J) or whether the publisher honestly suspected illegality or criminality (Telegraph Newspaper Co Ltd v Bedford (1934) 50 CLR 632 at 661 per Evatt J, with whom Rich and McTiernan JJ agreed).
92 His Honour's conclusion in relation to imputation (c) rested on the proposition that the appellant had not established as a matter of fact that a duty or interest sufficient to found a finding of an occasion of qualified privilege had been established for two reasons. First, he found the appellant had a mere "curiosity" as to the legalities involved in the respondent receiving building work from the Council. Secondly he concluded that the appellant had no bona fide basis upon which to call for an investigation but, rather, to the extent he had received any information concerning the respondent's contractual relationship with the Council, founded his communication on "gossip". These were factual findings which were clearly open on the evidence.
93 Ground of appeal (h) should be rejected.
94 Ground of appeal (g) complained that the primary judge erred in applying subjective considerations to the determination of whether the matter complained of was published on an occasion of qualified privilege. Mr Campbell did not address this ground in either his written or oral submissions. It should be rejected.