Malice
150 The next question is whether the statements were published maliciously. Mr Andronos submitted that malice exists where a defendant intends to cause harm or where harm is the natural and probable consequence of the publication. In support of that submission, he cited the decision of the High Court in Palmer Bruyn at 397. In my view, as to the second proposition, the submission was misconceived. Palmer Bruyn was concerned, not with the question of malice (which was found in the appellant's favour by the trial judge) but with the question whether there was a causal relationship between the making of the false statement and the damage of which the appellant complained. It was in that context that Gleeson CJ said at 397:
"But it is the falsehood which must cause the harm; harm of a kind which is intended, or, of a kind which is the natural and probable consequence of the making of the false statements."
151 That is not a statement about malice. Australand's reliance on Palmer Bruyn, in my view, confuses the harm required to be proved to establish an entitlement to damages with the harm required to be proved to have been intended in order to establish the existence of malice. Gummow J in a separate judgment in Palmer Bruyn noted at [61] that the element of malice has been said to cause the most difficulties for courts in resolving cases of injurious falsehood, but could be put aside in that case since the trial judge's finding of malice had not been the subject of any challenge before the Court of Appeal or the High Court. I do not accept the submission that Palmer Bruyn stands as authority for the proposition that malice exists where harm is the natural and probable consequence of the publication.
152 Mr Andronos also referred to Swimsure Laboratories v McDonald [1979] 2 NSWLR 796 at 802 and to the English decision of Wilts United Dairies v Thomas Robinson Sons & Co [1957] RPC 220 at 237, a decision of the Queen's Bench Division. In Swimsure, Hunt J, considering whether to extend an interlocutory injunction to restrain injurious falsehood pending final hearing, said:
"There is evidence before me of falsity, and evidence from which the inference can be drawn that the direct object of the publication was to injure the plaintiff's business, rather than to sell the defendant's product. That is sufficient to establish malice in the publication."
153 I understand his Honour's reference to the object of the publication to be a reference to the object of the publisher, that is, to his subjective state of mind.
154 In Wilts United Dairies, Stable J, after noting in passing that the case concerned a sweetened condensed milk very similar to the product that his Honour remembered consuming in large quantities at preparatory school, said:
"As I understand the law it is this, that if you publish a defamatory statement about a man's goods which is injurious to him, honestly believing that it is true, your object being your own advantage and no detriment to him, you obviously are not liable. If you publish a statement that turns out to be false but which you honestly believe to be true, but you publish that statement not for the purpose of protecting your own interests and achieving some advantage to yourself but for the purpose of doing him harm, and it transpires, contrary to your belief, that the statement that you believed to be true has turned out to be false, notwithstanding the bona fides of your belief because the object that you had in mind was to injure him and not to advantage yourself, you would be liable for an injurious falsehood."
155 Mr Andronos submitted that the approach in Wilts United Dairies is consistent with the comparable principle in defamation law where, even if the defendant firmly believes his statement to be true, he is guilty of malice if his sole or dominant purpose is to harm the plaintiff: Horrocks v Lowe [1975] AC 135 at 150 per Lord Diplock. Mr Andronos submitted that the basis for that proposition is that the essence of malice is the improper purpose, knowledge of falsity being merely a means of proving the impropriety.
156 I accept that impropriety of purpose is the essence of malice. However, care must be taken when drawing comparisons with the principles applicable in the law of defamation. Where malice is alleged to defeat a defence of qualified privilege in a defamation case, the propriety of the defendant's purpose in publishing the matter complained of is measured by reference to its relevance to the privileged occasion. The existence of a sole or dominant purpose irrelevant to the occasion amounts to malice. The parameters of impropriety of purpose in the context of the tort of injurious falsehood are more elusive.
157 Wilts United Dairies suggests that the relevant distinction is between the objects of advantaging oneself and injuring another, but that may be a false dichotomy.
158 In Palmer Bruyn, Gummow J at [61] referred to the view of the English Court of Appeal that the criteria for malice in injurious falsehood are the same as at common law for libel and slander but noted that it was not necessary to consider the correctness of that view because the trial judge's finding of malice was not the subject of any challenge on appeal. The approach applied by the trial judge had been that malice is established either by showing the existence of some indirect, dishonest or improper motive, or by showing an intent to injure without just cause or excuse.
159 The apparent difficulties of definition are helpfully analysed by Mr JD Heydon, as his Honour then was, in the following passage in Economic Torts (2nd ed 1978) at 83, the first part of which is adopted in Clerk & Lindsell on Torts (19th ed 2006) at 24-13:
"Malice means one of three things: either personal spite, or an intention to injure the plaintiff without just cause, or knowledge of the falsity of what is said. There has been a great deal of discussion as to which formulation is correct; this has largely been arid, because the precise formulation has hardly ever mattered. The best view now seems to be that any one of the three states of mind will suffice for liability."
160 In the present case, it was not suggested that Mr Baltinos was actuated by personal spite. The thrust of the submission put by Mr Andronos was that it was enough that the defendants acknowledged that the publication of the committee's findings would cause substantial damage to Australand. As I have already indicated, in my view that submission proceeds on a misconception as to the proposition for which Palmer Bruyn is authority.
161 Mr Andronos further submitted that, to the extent that subjective belief is relevant, the evidence established at the very least reckless indifference on the part of the defendants to the question of falsity of the allegations. I do not accept that submission. In my assessment, Mr Baltinos was not indifferent to the truth but passionate about it. Further, I am satisfied that Mr Baltinos holds an honest belief in the truth of his allegations which he has reached, not recklessly, but through a close and lengthy analysis of all the information he could gather. He has, as it is sometimes said, sought to leave no stone or any part thereof unturned. Many of his beliefs are unfounded and even irrational in some respects but that is not enough to constitute malice: cf Horrocks v Lowe at 152H - 153A.
162 The defendants denied that it was their intention to injure the plaintiff. By their amended defence, they stated:
"The intention of the first defendant is the same as the media exposing a public company that was running an illegal scheme without the knowledge of their clients, and in close association with a builder known to the plaintiff as a rapacious thief, as the plaintiff received several complaints against the so-called nominated builder for Australand before its 19/7/2007 'dismissal'. It is common sense to expect a negative reaction from clients and future clients once the conduct of the plaintiff will be fully known."
163 I accept that exposure of the perceived misconduct of Australand in the public interest may have been one of the objects of publication. However, the evidence discloses that the documents were published, and are threatened to be published, with the concurrent object of inducing Australand to compensate Mr Baltinos for his perceived losses under threat of the harm that would be likely to flow from the publication of the material. Indeed, I am persuaded that that was probably the defendants' main object in publishing the material. I have already referred to some of the statements in the documents that clearly articulate the threat. It is clear from those statements that the object of both the Council and Mr Baltinos was to hold up the risk of harm to reputation as an inducement to Australand to soften its recalcitrant stance in response to Mr Baltinos' claims.
164 It is important to consider the nature of the harm threatened. The threat was not simply to "go to the media" or to publish the underlying evidence so that the public could judge the conduct for itself. Mr Baltinos went to enormous lengths to facilitate the production of a document which, in its presentation, is designed to appear to have some authoritative status. The inference I draw is that the purpose of publishing the findings was to pursue a campaign by means of a threat, not to publish the truth, but to publish a document calculated to convey the impression that Mr Baltinos' allegations had been upheld in an independent and competent inquiry. The making of that threat, coupled with the apparent preparedness not to publish if compensation is paid, undermines the contention that the exposure of misconduct in the public interest was the true object of the report.
165 The position might have been different if the content of the threat had simply been to publish a bare factual statement of the events that occurred and the underlying documents relied on by Mr Baltinos in support of his complaint. The vice of the threat made in the interim report is in the presentation of its findings as the reasoned conclusions of an independent inquiry. A threat in that form indicates an intention to expose Australand to the risk of harm to its business, not on account of the public's judgment of its conduct (as alleged in the defence) but on account of the appearance of its having been already judged adversely by some authoritative body. That is a threat in the true sense. It is a declaration of intention to inflict punishment, if no resolution is reached, in the form of publication of something more than the bare facts.
166 It is difficult to analyse those matters against the formulation of malice as an intention to injure without just cause. The justness of the cause is a matter of perception. If the statement turns out to be false, that establishes the element of falsity but in my view it is doubtful whether it could be regarded as establishing the element of malice. The formulation "intention to injure without just cause" suggests that knowledge of the absence of just cause is an aspect of the intention to injure. Mr Andronos submitted that I should find that Mr Baltinos must have known after many rounds of unsuccessful litigation that his allegations were wrong but I am persuaded that he did not falter in his views.
167 The critical question is whether the purpose disclosed by the content of the threat is an improper purpose. I have come to the view that it is. The impropriety lies in the presentation of the material as the findings of an authoritative body coupled with the preparedness not to publish if there is a resolution of the dispute. A threat to commence proceedings or to lodge a complaint to a proper authority if a perceived breach of obligation is not rectified would be in a different category. It is not necessary in the present case to consider the more difficult question of a threat to publish facts fairly presented to a journalist. The vice of the threat in the present case, as I have said, is in the expression of the allegations as authoritative findings and legal conclusions.
168 The consequence is that, notwithstanding an honest belief in the truth of the allegations, the defendants would be liable for an injurious falsehood if the documents and the allegations were published, assuming that actual damage can be established.
Damage
169 As to the question of damage, the amended defence concedes, in effect, that a general loss of business would be suffered if future publication were permitted. Mr Andronos submitted that the absence of evidence of actual loss could be explained by reference to the fact that an injunction restraining publication was swiftly sought by Australand and ordered by this Court. I am satisfied that there is a reasonable probability that actual damage to the plaintiff would result if the statements were permitted to be published.