Relevance
71 Section 9 of the 1974 Act provided that a plaintiff is required to sue on the imputations arising from the matter which the plaintiff alleged defamed him or her. A controversy, stimulated by the appellants in the present case, has been generated about whether a defendant could successfully defend by pleading that the matter complained of was published on a privileged occasion or was required to plead that the defamatory imputation was published on that occasion. Once the purpose of the defence is understood most people would respond with the question "what is the debate about?" The defence has the purpose of protecting the defendant from liability for damages for publishing a defamatory imputation. Does it really matter whether the protected occasion is described as the occasion on which the imputation is published or the occasion on which a matter was published which gave rise to the defamatory imputation? The issue was considered by McColl JA in Lindholdt v Hyer [2008] NSWCA 264 where her Honour considered the decision of the trial judge in the present case. I shall return to that matter below.
72 Before the occasion on which a defamatory imputation is published will be protected by qualified privilege there must be a sufficient connection between the imputation and the privileged occasion. Accordingly, as Gummow J pointed out in Bashford (at [135]) it is first necessary to identify the particular imputation before determining whether it was published on a privileged occasion. Only then can the issue of relevance be resolved.
73 Although the decided cases reflect decisions made after consideration of these two issues, the appropriate sequence in the reasoning process has not always been followed. In most cases this does not matter, although this is not true of all cases. Problems may arise when a publication makes a number of statements which give rise to a variety of imputations, some of which may be defamatory and others not. To speak of the publication being an occasion of qualified privilege without further refinement may be misleading. It is only matters in respect of which the publication is occasioned by the necessary reciprocity of interest and duty which the law describes as being published on an occasion of qualified privilege.
74 In Bashford, Gummow J expressed the following caution (at [135]):
"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" (footnotes omitted).
75 The issue can be readily understood by a variant of the present case. If a bank returned a cheque to the payee having correctly determined that there were insufficient funds with two endorsements, one being "Refer to Drawer" and the other, the "drawer is a thief", the imputations arising from the publication of the first statement, made necessary by the bank's decision to refuse payment, will be an occasion of qualified privilege. The publication of the second will not, there being no interest or duty on the part of the bank to publish that the drawer is a thief, with whatever defamatory imputation may be found to arise from the publication of that statement. An occasion on which matter which gives rise to defamatory imputations is published may not be used for some purpose or motive foreign to the duty or interest that protects the making of the statement: Roberts v Bass (at [62]).
76 The decision in Bashford concerned the publication of a defamatory article in the Occupational Health and Safety Bulletin. There was no question that the article defamed the plaintiff. At issue was whether the occasion for the publication was one of qualified privilege and, of relevance to his appeal, whether that part of the article which defamed the plaintiff was sufficiently connected to the privileged occasion to attract the defence. The High Court, by majority, held that the occasion was privileged, being satisfied that the matter which defamed the plaintiff was sufficiently related to the privileged occasion.
77 On the question of the test of relevance Kirby J said:
"[191] The test of relevance: The foregoing conclusions bring me to the last point, which was the one upon which, in the Court of Appeal, Rolfe A-JA reached his dissenting conclusion. Accepting that the occasion was privileged, was the defamatory imputation (being the mistaken reference to the appellant personally) germane to the occasion? Or did it amount to '[t]he introduction of ... extraneous matter' so as to 'afford evidence of malice which will take away protection on the subject to which privilege attaches' or otherwise take that part of the publication outside the protection of the privilege?
[192] Simply because, in a general sense, the publication of matter defamatory of an individual is included in a context of discussion of a subject of public interest on which there is the requisite reciprocity of interest and duty, does not assure the imputation of protection. Were it so, a great many grievous wrongs to the reputation of individuals would be privileged against redress simply because of a tenuous, remote or contrived connection between the defamatory imputation and the context. The introduction into a privileged communication of extraneous defamatory imputations will not necessarily cloak them with the privilege. The problem remains one of drawing a line between the protected and the unprotected.
[193] Various judicial formulae have been propounded to mark out the boundaries of the protection given by the relevant privilege. In Bellino v Australian Broadcasting Corporation, the joint reasons suggested that the test was whether 'those defamatory imputations ... are relevant to the privileged occasion'. In that case Brennan CJ was, if anything, more stringent. He did not consider that it was sufficient to decide whether the impugned imputations were 'unconnected with and irrelevant to the main statement', as Lord Dunedin had proposed in Adam v Ward. In Brennan CJ's view, it was necessary, in order to attract the protection, that 'the publication of the defamatory matter makes a contribution to the discussion of the subject of public interest.' A still further criterion of connection, apparently derived from Canadian formulations, was that applied by Sheller JA and Hodgson JA in the Court of Appeal. This asked whether the defamatory imputations were sufficiently 'germane and reasonably appropriate' to the publication on the matter of public interest that otherwise attracted the privilege.
[194] All of these formulae are attempts to define the boundaries of a discussion that is truly within the scope of the matter of public interest, so as to exclude the introduction of extraneous, irrelevant or marginal and gratuitous imputations that unacceptably do harm to the reputation and honour of an individual. Scientific precision is impossible by the use of such formulae. In every case, a judgment is evoked. In some instances the titillating character of an irrelevant defamatory imputation in an otherwise justifiable context will be plain. But in other cases, the issue will be more debatable, as Callinan J has correctly recognised.
[195] Care must be observed in taking too literally the test propounded by Brennan CJ in Bellino. Because, as Callinan J notes a defamatory imputation, as such, will commonly make little contribution to a discussion of public interest if included in a mistaken report of court proceedings, too rigid an application of that criterion would be self-fulfilling. Every error that involved a defamatory imputation would be cast beyond the pale. This would effectively introduce into the defence of qualified privilege a strict or even absolute requirement of accuracy in reports of proceedings that has been a feature of the common law defence of protected reports but not, as such, of qualified privilege. This, in turn, could endanger free discussion on subject matters of public interest that qualified privilege protects for the welfare of society.
[196] Does this mean, as the appellant argued, that to allow the defence of qualified privilege would fundamentally frustrate the policy inherent in the defence of fair protected reports? I think not. In order to secure the alternative defence of qualified privilege, it remains in each case for the publisher to demonstrate that the defamatory imputations are 'relevant to the privileged occasion'. It must be left to the common sense of judges (and, where they still decide such matters, juries) to evaluate in the particular case whether the defamatory imputation is 'relevant' or 'germane' to the occasion or not. It can be left to such decision-makers to navigate the course between the Scylla of extraneous affront and the Charybdis of unrealistic demands that all communications on matters of public interest be fastidiously checked so as to remove the slightest inaccuracies before publication. Whilst the principal disqualifying element for the defence of protected report has conventionally been a want of fairness (and accuracy), the disqualifying element in the case of the defence of qualified privilege has conventionally been different: the existence of malice and the lack of bona fides on the part of the publisher. These considerations are not present here" (footnotes omitted).
78 Callinan J said:
"[235] Everything to which I have referred highlights the importance of identifying, and doing so with some degree of precision, the relevant subject matter. It is equally important to make sure that the inaccurate and defamatory matter in respect of which the defence is advanced is not extraneous to that subject matter and is, to adopt the words of each of Sheller and Hodgson JJA respectively in the Court of Appeal in this case which I am content to do, 'sufficiently connected' and 'germane and reasonably appropriate' to it. A slight, or general, ill-defined connection will not suffice. As North J said in Truth (NZ) Ltd v Holloway in a passage cited with approval by Windeyer J in Australian Consolidated Press Ltd v Uren:
'[T]here is no principle of law, and certainly no case that we know of, which may be invoked in support of the contention that a newspaper can claim privilege if it publishes a defamatory statement of fact about an individual merely because the general topic developed in the article is a matter of public interest'" (footnotes omitted).