To what does the Common Law defence of qualified privilege refer
53 Put simply, and with particularity in the context of this case, the question I raised was whether the defence of qualified privilege at common law falls to be considered by reference to the matter complained of, that is, by the endorsement of the words "Refer to Drawer" on each of the 30 cheques, or alternatively, by reference to the imputations found by the jury to arise from that publication. I invited submissions on the question since I was satisfied that there was no clear statement of principle in the authorities to which the parties had referred me in the course of argument, and neither party had addressed the precise question in their extensive oral and written submissions. I was concerned that if I were to focus my inquiry on the defamatory imputations, and the approach was later found to be in error, a rehearing would be inevitable since the defendant accepted that it had no relevant interest or duty to publish the imputations suggestive of the fact that Mr Aktas was an incompetent manager or that Homewise had otherwise failed to discharge its obligation as trustee. On the other hand, if my focus should properly be on the matter complained of, that is the endorsement "Refer to Drawer", then that would leave the way clear to address the question as to whether, in the circumstances of this case, the defendant published those words on an occasion of qualified privilege as an answer to the plaintiffs' case.
54 Although, in the result, I am satisfied that the common law defence of qualified privilege is referable to the publication of the matter complained of, in this case the endorsement "Refer to Drawer" on the 30 trust account cheques and not to the imputations that the publication gave rise to, given the detailed submissions I received on the question I propose to set out, in summary, the arguments advanced by the parties.
55 The parties took diametrically opposed positions. The plaintiffs submitted that having regard to the retention of the common law defence of qualified privilege in the Defamation Act and the fact that the Act and the statutory defences are referable to the defamatory imputations, the common law defence of qualified privilege should be pleaded to the publication of the imputations. The defendants submitted that it is the publication of the matter complained of which attracts the common law privilege since the doctrine speaks of whether the publication was on an occasion of qualified privilege not whether the imputations are themselves privileged. The defendant also submitted that there is only one common law of Australia and that the defence of common law qualified privilege is expressly preserved by s 11 of the Act. Accordingly, the common law defence must be the same in, for example, Victoria and New South Wales, with the result that the traditional formulations of the privilege, couched in terms of publication on an occasion of privilege, are applicable in New South Wales.
56 The parties took me to various authorities, although, as I noted above, none was definitive of the issue I raised. Westpac regarded this as supportive of its position. It submitted that those cases that concerned qualified privilege at common law and governed by the Act simply proceeded on the assumption that the matter complained of is the focus of consideration, and, because of the prevalence of this assumption, direct authority for the proposition that the defence focuses on the matter complained of rather than the imputations is not abundant. The defendant submitted that it is the absence of any authority to the contrary which shows the settled position.
57 In this connection, Westpac referred me to Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255, where Hunt AJA at [119], in the course of a review of the role of imputations under the 1974 Act generally, noted that the defence of statutory qualified privilege is not pleaded to the plaintiff's imputations. His Honour did not however refer to common law qualified privilege, despite the apparently exhaustive nature of the list. In John Fairfax Publications Pty Ltd v O'Shane [2005] NSWCA 164, Giles JA specifically noted (at [21] and [36]) that the defence of comment was referable to the imputations rather than the matter complained of, but also made no such observation in relation to qualified privilege, referring instead to the defence relating to a "defamatory statement" (at [74]). The judgment of Young CJ in Eq at [171] and [213]-[221] was submitted by Westpac to similar effect. The same point was made by reference to the judgment of Mason P in Greek Herald Pty Ltd v Nikolopoulos and Others (2001) 54 NSWLR 165, at [19], where reference to the defence of qualified privilege was noticeably absent, when his Honour said:
"A plaintiff's pleaded imputations set the scene for the contest which follows. The defendant's pleadings will respond to the asserted causes of action. The jury will have to decide whether the matter complained of carries the imputation and, if so, whether it is defamatory or the plaintiff. Defences as to truth, contextual truth and comment are also responsive to the pleaded imputations ( Defamation Act , s 15(2), s 16(2), New South Wales Aboriginal Land Council v Perkins (1998) 45 NSWLR 340)."
58 In Sims v Wran [1984] 1 NSWLR 317, Hunt J reviewed the particulars that were by operation of Part 67 of the Supreme Court Rules (since repealed) required to be given for various defences to an action in defamation. At 326G-327B, his Honour dealt with common law qualified privilege and, at 327C-328B, with statutory qualified privilege. Westpac emphasised that no requirement for either defence to be directed to the imputations was specified.
59 In short, Westpac submitted that there was no authority in which the common law defence of qualified privilege was approached in the way contended for by the plaintiffs other than the obiter and general observation of Meagher JA in New South Wales Aboriginal Land Council v Perkins (1998) 45 NSWLR 340 where his Honour said (at pp 348-349):
"The Defamation Act 1974 was a revolutionary change in the laws of defamation in New South Wales. Before that Act a plaintiff merely stated that the publication of which he complained and sought damages for loss of reputation flowing therefrom. After the 1974 Act a plaintiff no longer sued on the publication, but on the imputations which he alleged arose from it. Each imputation was a cause of action. Consequently, one would have thought, any successful defence must be a defence to the imputation. Otherwise the defendant would be answering a cause of action which the plaintiff does not rely on (viz, the publication), and the cause of action on which he does rely (viz, the imputation) would go unanswered."
60 Westpac also referred me to what Priestly J said (at p 343) in the same case, namely:
"Because of his view that the defamatory imputations had not been made by the published matter, it was not necessary for Glass JA to deal with the defendant's comment grounds of appeal. However, at some length, he considered, amongst other questions relating to comment, the question raised in the present appeal, whether the defence of comment should be directed to the imputations relied on by the plaintiff or to the published matter by which they are made. The bare bones of Glass JA's answer to the question were that: (a) s 9(2) of the Defamation Act made each defamatory imputation made by the published matter and relied on by the plaintiff an independent cause of action; and (b) the defence of comment must be pleaded as a defence to a cause of action, that is, to a defamatory imputation relied on by the plaintiff."
61 It is not clear to me that Meagher JA was intending to sweep a review of the operation of the common law defence of qualified privilege within his review of the changes wrought by the Defamation Act. Similarly, I am not satisfied that what Priestly J said should be interpreted in that way. The defendant submitted that because their Honours did not address the operation of the common law defence of qualified privilege within the auspices of the Defamation Act, their judgments in Perkins did not assist in the resolution of the issue at hand. Notwithstanding the significance of Perkins, I do not consider the judgment has the force contended for by the plaintiffs.
62 Westpac also submitted that the recent case law to which the plaintiffs referred (namely Bashford and Bellino v Australian Broadcasting Corporation (1995-96) 185 CLR 183) does not, on a careful reading, support the position for which the plaintiffs contend. I am urged to the view that in referring me to these two authorities the plaintiffs confused or elided the question of whether the publication is on an occasion of qualified privilege with the question of whether the occasion has been used excessively such that the protection of the privilege falls away. It seems to me to be patent from the established authorities on the operation and scope of qualified privilege that it is only where there is a question of excessive use of an already established occasion where the privilege might obtain that there has been a need to review the imputations conveyed by the publication, and only then to identify their relevance to the occasion, since it is well established that the common law privilege attaches only to those defamatory imputations that are relevant to the privileged occasion (see Theodore Skalkos and Anor v Joseph Assaf and Anor [2002] NSWCA 14 in particular at [23] and [28]).
63 In Bashford, at [135] Gummow J referred to the joint judgment of McHugh and Dawson JJ in Bellino, with which he agreed, where he said:
"It is clear that both the primary judge and the Court of Appeal proceeded on the assumption that it was first necessary to establish that the principal part of the article was published on an occasion of qualified privilege and only then to consider whether the defamatory imputation, although not contained within the principal part of the article, nevertheless, was relevant to it. In my view, such an approach requires caution. The defence of qualified privilege is a plea in confession and, as such, is predicated upon the existence of a defamatory imputation to which the privilege attaches. To speak of qualified privilege attaching to a non-defamatory statement is to ignore this fundamental characteristic. It follows that questions of relevance, in the sense in which that term was used by the judges below, will ordinarily only arise where two or more defamatory imputations are published on a single privileged occasion. In such circumstances, it will be necessary to determine whether each imputation falls within the umbrella of the applicable privilege or whether one of the imputations is not relevant and, therefore, not covered by the defence. In the present case, only one defamatory imputation has been found to have been conveyed. It is therefore necessary to consider whether that imputation was made on an occasion giving rise to a defence of qualified privilege arising out of a reciprocal duty or interest."