Bashford v Information Australia

High Court of Australia|2004-02-11|Before: Heydon JJ

The application of the settled principles of the law concerning qualified privilege requires the rejection of Information Australia's claim that the defamation was published on an occasion of qualified privilege. I have not read all the reported cases on common law qualified privilege decided by the English and Australian courts, but I have read many - probably most - of them. I can think of only two English cases that remotely support the bold claim of qualified privilege for this defamation. In Chapman v Ellesmere (Lord)[112], the English Court of Appeal held that the occasion was privileged when the defendants published the disqualification of a horse trainer in the Racing Calendar, the recognised organ of the Jockey Club, which was circulated to persons interested in horse racing. It is hard to see what "interest" in the proper sense the readers of the Racing Calendar had in the trainer's disqualification. Central to upholding the claim of privilege, however, was the fact that the plaintiff was bound by a rule of the Rules of Racing of the Jockey Club that authorised disqualifications to be published in the Racing Calendar. The decision may therefore be supported on the ground that the trainer had consented to the publication. Significantly, the Court of Appeal rejected a claim of qualified privilege for the publication of the disqualification in the Times newspaper.

In the Court of Appeal and in this Court, Information Australia principally relied on the decision of this Court in Howe[116] to support its claim of privilege. But for the reasons that I have already given, that case does not assist Information Australia's claim for privilege.

Two other cases arguably might give support for Information Australia's claim that the occasion was privileged. In Camporese v Parton[117], the Supreme Court of British Columbia held that the occasion was privileged when a newspaper asserted that the plaintiff was selling imported canning lids that he knew were defective. The article asserted that using the lids could cause death because they would lead to the formation of a deadly toxin in the cans. The claim of privilege was upheld although the trial judge held that the report was careless and reckless, the plaintiff had invited the defendant to test the lids and the information in the reporter's hands required further in-depth investigation. The trial judge held that the public's interest in learning that the lids were defective was sufficient to create a reciprocity of interest between each reader of the article and the defendant. With great respect to the learned judge, the decision is plainly erroneous. It offended the long-established rule that, where the subject matter of the article is not itself a matter of public interest or published in answer to a public attack on a person, a general newspaper cannot create an occasion of qualified privilege by publishing matter to inform or protect the defendant or some other person[118].

The second case is Bowin Designs Pty Ltd v Australian Consumers Association[119]. In Bowin, Lindgren J held that an occasion of qualified privilege existed for the publication of an issue of Choice magazine that imputed that the applicants had irresponsibly and recklessly distributed dangerous gas heaters. The issue of Choice was sent to more than 140,000 subscribers. Lindgren J said[120]:

"In my view, because the use of gas heaters is so widespread and undiscriminating, members of the public generally had an interest in being warned of the defect and of the fire danger present in the use of the heaters. That interest was personal and private to each member of the public, although shared by all. The warning could be given effectively only by notification to the general public. In such a case the rationale underlying the qualified privilege defence is satisfied."

I think that his Honour erred in upholding this claim of privilege. No incident concerning the heaters had been reported during the previous 22 months[121]. Moreover, only 3,400 of the heaters that contained the problem had been manufactured and the evidence suggested that only a small number of them were defective. It seems highly unlikely that more than a few thousand of the 140,000 subscribers to Choice had purchased the heaters - indeed it would not be surprising if no more than a few hundred subscribers were directly interested in the matter. It is impossible to see how the great bulk of Choice readers had the requisite "real and direct personal, trade, business or social concern" with the applicants and their heaters. In these circumstances, his Honour's decision is surprising and almost certainly incorrect. But even if his Honour was correct in holding that the readers of Choice had a sufficiently direct interest in the subject matter of the article to create a social duty in the defendant to inform them of the defects that it believed existed in the heaters, the decision is far removed from the facts of this case.

It would be astonishing if the common law principles of qualified privilege required the present claim to be upheld. It would mean that any defamatory statement by this defendant concerning any person, no matter how serious or how false, would be the subject of qualified privilege if it was relevant to or explained any topic falling under the rubric of occupational health and safety. An article that falsely imputed that an employer was criminally liable for the work-related death of an employee would therefore be published on an occasion of qualified privilege. Unless the employer could prove malice on the part of the defendant, the employer would be without remedy. (Indeed, this very issue of the bulletin contains a story not far removed from this hypothetical.)

Nor is this a case where the Court should intervene to change the settled principles of the common law. In R v Governor of Brockhill Prison, Ex parte Evans (No 2)[122], in a passage with which I entirely agree, Lord Hobhouse of Woodborough said:

"The common law develops as circumstances change and the balance of legal, social and economic needs changes. New concepts come into play; new statutes influence the non-statutory law. The strength of the common law is its ability to develop and evolve. All this carries with it the inevitable need to recognise that decisions may change. What was previously thought to be the law is open to challenge and review; if the challenge is successful, a new statement of the law will take the place of the old statement."

In New South Wales, the Defamation Act has a statutory form of qualified privilege. So have the Code States of Queensland[123], Tasmania[124] and Western Australia[125]. Under these legislative regimes, reciprocity of duty and interest is not a condition of the statutory defences. Some forms of these statutory defences make it necessary, however, to prove that the recipients had an interest in receiving the communication. Moreover, most of these statutory defences stipulate various conditions - for example, reasonableness - that must be fulfilled before they apply. In the present case, despite lack of reciprocity of duty and interest, s 22(1)(c) of the Defamation Act arguably gave Information Australia a defence if it could show that its conduct was reasonable. Significantly, it did not rely on this defence.

It is, however, one thing to overrule previous decisions and another thing to repudiate fundamental principles of the common law. Reciprocity of duty and interest is fundamental to the common law doctrine of qualified privilege. It would be a far-reaching step, bordering on legislation, to eradicate it from the common law. Moreover, if reciprocity of duty and interest were banished from common law doctrine, some substitute would have to be found to maintain that balance between freedom of speech and protection of reputation that the common law has long sought to maintain. That balance could only be achieved by imposing conditions such as those found in the legislative regimes to which I have referred. Such conditions could only be successfully formulated after widespread consultation with a variety of interested parties. Courts do not have the facilities or the right to engage in such consultations. Imposing such conditions is, therefore, a legislative rather than a judicial function.

In C (A Minor) v Director of Public Prosecutions[126], Lord Lowry referred to five matters that he said judges should take into account before interfering with fundamental doctrine:

"(1) If the solution is doubtful, the judges should beware of imposing their own remedy. (2) Caution should prevail if Parliament has rejected opportunities of clearing up a known difficulty or has legislated, while leaving the difficulty untouched. (3) Disputed matters of social policy are less suitable areas for judicial intervention than purely legal problems. (4) Fundamental legal doctrines should not be lightly set aside. (5) Judges should not make a change unless they can achieve finality and certainty."

In my opinion, the claim that this defamatory communication was published on an occasion of qualified privilege must be rejected. It is therefore unnecessary to determine the issue whether the defamatory matter was relevant to the occasion of privilege.

The appeal should be allowed. The order of the Court of Appeal should be set aside. In its place should be substituted an order that the appeal to that Court be allowed and judgment entered for the plaintiff in the sum of $25,000. Information Australia should pay the costs of this appeal and the proceedings in the Supreme Court, including the Court of Appeal.

GUMMOW J. The respondent, Information Australia (Newsletters) Pty Limited ("Information Australia"), is a publisher of books, directories and newsletters. Among its publications is a subscription newsletter entitled Occupational Health and Safety Bulletin ("OHS Bulletin"). In an issue of the OHS Bulletin dated 28 May 1997, the respondent published an article entitled "MSDS [material safety data sheets] copyright case dismissed". The points of defamation law in New South Wales with which this appeal is concerned arise in the following circumstances.

The article concerned the decision of the Federal Court (Merkel J) in ACOHS Pty Ltd v RA Bashford Consulting Pty Ltd, which was delivered on 9 May 1997[127]. On 9 December 1993, ACOHS Pty Ltd ("ACOHS") had instituted a proceeding in the Federal Court against RA Bashford Consulting Pty Ltd ("RABC") and Risk Management Concepts Pty Ltd ("RMC"), two companies involved in the publication of a newsletter entitled Infax. ACOHS claimed that both companies had contravened s 52 of the Trade Practices Act 1974 (Cth) ("the TPA") by publishing an article in which it was claimed that ACOHS had been found guilty of copyright infringement in relation to the use of material safety data sheets produced by Chemwatch, a business owned and operated by Mr Bernie Bialkower. In fact, no such court proceeding had been instituted and at no stage had ACOHS been found guilty of copyright infringement in relation to Chemwatch's material safety data sheets. ACOHS also sought relief against Mr Bialkower, who was alleged to have been the source of the misleading statements and to have authorised their publication.

In response, Mr Bialkower cross-claimed against ACOHS alleging that the company had infringed Mr Bialkower's copyright in works, being several safety data sheets, by transcribing the data sheets into its database. He also sought an injunction against further infringement of that copyright.

Merkel J found each of the defendants, RABC, RMC and Mr Bialkower, liable for harm caused by the misleading statements contained in the Infax newsletter and awarded ACOHS $20,000 in damages. However, his Honour dismissed Mr Bialkower's cross-claim, holding that no infringement of copyright had been established and that, in any event, relief would have been refused on discretionary grounds. Those discretionary grounds were said to include the public interest in ensuring that the disclosure of safety data sheets for safety-related purposes was not unduly impeded.

In discussing Merkel J's decision, the OHS Bulletin article dealt principally with Mr Bialkower's cross-claim. In this vein, the article commenced as follows:

"Material safety data sheets should not be too restricted by copyright - they should as much as possible be available to enforce OH&S, according to a Federal Court ruling in the past fortnight."

However, the article concluded by referring in the last seven paragraphs to the claim by ACOHS of contravention of s 52 of the TPA, in respect of which the cross-claim by Mr Bialkower had been instituted:

"[32] The breach of copyright allegations were made by Mr Bialkower in response to an action initiated by ACOHS in 1993. > > [33] ACOHS sued the publishers of a newsletter called Infax which had printed a report claiming ACOHS was one of two companies Bialkower successfully prosecuted for MSDS copyright infringement. > > [34] ACOHS also sued Bernie Bialkower as he had provided the information for the report. > > [35] Mr Bialkower then made the counter-claim, accusing ACOHS of copyright infringement. > > [36] In respect of the initial claim, Justice Merkel found the publishers of Infax newsletter, RA Bashford and Risk Management Concepts, had engaged in false and misleading conduct by publishing an incorrect report - there had been no such copyright case - and that Bialkower was the source of the information and authorised its publication. > > [37] He ruled publication of the 'seriously misleading statements caused harm to ACOHS's repute and goodwill and that harm is likely to have led to some loss of business or custom'. > > [38] He awarded ACOHS $20,000 damages and ordered Bialkower, RA Bashford and Risk Management Concepts to pay their legal costs." (paragraph numbers inserted)

It will be noted from pars [36] and [38] of the article that Merkel J had found "RA Bashford" guilty of engaging in false and misleading conduct and had ordered "RA Bashford" to pay ACOHS' legal costs. In fact, as noted earlier in these reasons, his Honour had made his findings in respect of RABC, which was a party to the Federal Court proceeding.

The appellant, Mr Rex Anthony Bashford, was, at all material times, a director of RABC. On 30 September 1997, Mr Bashford instituted an action in the Supreme Court of New South Wales against Information Australia for damages allegedly suffered as a result of defamatory imputations contained in an article in the 28 May 1997 issue of the OHS Bulletin.

In order to understand the course of the Supreme Court proceedings, and the issues that arise in this appeal, it is at this point convenient to outline the legal foundation of the procedural and substantive law governing defamation law in New South Wales. Prior to 1958, and notwithstanding the Defamation Act 1912 (NSW), the law relating to defamation "remained basically a body of law established by judicial decision"[128]. In that year, the Defamation Act 1958 (NSW) ("the 1958 Act") was enacted. That Act endeavoured "largely to codify the substantive law and to supersede the common law"[129]. However, in the present case, the Defamation Act 1974 (NSW) ("the 1974 Act") governs proceedings. Section 4(1) of the 1974 Act repealed the 1958 Act and s 4(2) revived the common law as it related to defamation. In addition, s 11 expressly provided that[130]:

"The provision of a defence by this Part [entitled 'Defence in civil proceedings'] does not of itself vitiate, diminish or abrogate any defence or exclusion of liability available apart from this Act."[131] (emphasis added)

Section 11 of the 1974 Act may be contrasted with what had been provided by s 3(2) of the 1958 Act, namely:

"Except where this Act deals with, and makes a different provision for, any protection or privilege existing by law immediately before the commencement of this Act, nothing in this Act is to be construed to affect any such protection or privilege." (emphasis added)

Special provision is made in s 7A of the 1974 Act as to the method of trial in actions such as the present. The effect is that the "staunch safeguard of democratic liberty"[132] secured in England by Fox's Libel Act 1792 (UK)[133] has been withdrawn by the New South Wales legislature. Section 7A(1) provides that, where proceedings for defamation are tried before a jury, the court, rather than the jury, is to determine whether the matter complained of is reasonably capable of carrying the imputation pleaded by the plaintiff and, if so, whether the imputation is reasonably capable of bearing a defamatory meaning[134]. If the court determines that the matter complained of is reasonably capable of carrying the imputation pleaded by the plaintiff and the imputation is reasonably capable of bearing a defamatory meaning, the jury is to determine whether the matter complained of carries the imputation, and, if so, whether the imputation is defamatory (s 7A(3)). However, if the jury reaches the conclusion that the matter complained of was published by the defendant and carries an imputation that is defamatory of the plaintiff, then it is for the court to determine whether any defence raised by the defendant has been established and to determine the amount of damages (if any) that should be awarded to the plaintiff (s 7A(4)).

Three imputations were pleaded in Mr Bashford's statement of claim:

"(a) that [the appellant] was guilty of false and misleading conduct as a publisher of a report concerning [ACOHS] in the newsletter 'Infax', thereby causing [ACOHS] serious harm and loss; > > (b) that [the appellant], by publishing a false report concerning [ACOHS], had been found by the Federal Court of Australia liable to [ACOHS] in damages and costs for causing it harm and loss; > > (c) that [the appellant] was equally culpable with Mr Bialkower and [RMC] for causing serious harm and loss to [ACOHS] by the publication of a false report".

At trial, the jury found that imputation (b) was conveyed and was defamatory of the appellant. Imputations (a) and (c) were found not to have been conveyed. Thereafter, in proceedings before Davies AJ pursuant to s 7A(4) of the 1974 Act, the respondent pleaded common law qualified privilege arising out of a reciprocal duty or interest and the defences available pursuant to ss 13 (Unlikelihood of harm), 15 (Truth generally) and 16 (Truth: contextual imputations) of the 1974 Act. Davies AJ rejected the statutory defences relied upon by the respondent. However, his Honour upheld the respondent's defence of common law qualified privilege[135]. The appellant's proceedings were therefore dismissed.

An appeal by the appellant to the New South Wales Court of Appeal was dismissed by majority (Sheller and Hodgson JJA; Rolfe AJA dissenting)[136].

During argument before this Court, two primary questions arose for consideration: first, whether the Court of Appeal erred in rejecting the appellant's submission that the common law defence of qualified privilege arising out of a reciprocal duty or interest is unavailable in circumstances where the impugned publication is properly characterised as an inaccurate report of judicial proceedings; and, second, whether the Court of Appeal erred in concluding that the necessary criteria for the existence of common law qualified privilege arising out of a reciprocal duty or interest had been met in the present case. It is convenient to deal with these questions in the order in which they were argued before the Court.

Multiple defences to a single defamatory imputation?

At the heart of the appellant's submissions on this issue was the assertion that the common law defence of fair and accurate report of court proceedings "axiomatically eclipses" any particular relationship which might otherwise found a duty or interest sufficient to give rise to common law qualified privilege. The appellant contends that an imputation which would, but for its inaccuracy, attract the common law defence of fair and accurate report of court proceedings cannot attract the defence of common law qualified privilege arising out of a reciprocal duty or interest.

In response to this submission, Hodgson JA, in a passage with which I agree, noted[137]:

"[T]he requirement that a report of court proceedings be accurate in order that it have the protection of qualified privilege is a requirement that applies to one particular category of qualified privilege, namely that applicable to reports of court proceedings made to the public in general. It is not an additional requirement imposed over and above the other requirements for the reciprocal duty and interest category of qualified privilege."

What we now call the common law of defamation (with its division between libel and slander[138]) has not developed in a structured and ordered way; it is, as Gatley has noted, "firmly rooted in its historical origins, and [has not been] open to the development and rationalisation that is acceptable elsewhere in the common law"[139]. Pleas of publication on privileged occasions were a comparatively late development[140].

The appellant's submissions appear to be founded on an assumption that the law of defamation has evolved through reference to a coherent legal policy which implicitly rejects the availability of two or more defences of privilege to a single defamatory imputation. Such an assumption in turn requires acceptance of the proposition that the plurality of common law defences of privilege available in respect of a defamatory imputation exist within a framework which requires each defence to be developed with constant reference to each other defence. Neither that somewhat paradoxical proposition, nor the assumption upon which it is founded, should be accepted.

In the present context, it is important to remember that, at common law, the term "qualified privilege" enjoys no legal force of itself but is merely descriptive of those factual circumstances (many in number) which the law deems privileged to a qualified extent. Moreover, it is significant that the unifying criterion by reference to which the categories of qualified privilege have been formulated is not any element of commonality between the circumstances in which defamatory imputations are communicated but rather the effect, historically, which the presence of malice has had on the availability of the respective defences.

Therefore, it is unsurprising that categories of qualified privilege may differ in the considerations which found them. To take a relevant example, while the substantial accuracy of a report of judicial proceedings is deemed necessary in order efficiently to place the general public in the same position as those in attendance upon the relevant proceedings[141], it is well established that the inaccuracy of an imputation is no bar to the availability of qualified privilege arising out of a reciprocal duty or interest[142]. This is because the particular relationship between the defendant and the person in receipt of the communication, and the advantages which the law deems are to be had from free communication within such a relationship, enjoy a significance over and above the accuracy of the defamatory imputation in question.

It follows that the circumstance that the publication of a fair and accurate report of judicial proceedings and the publication of a defamatory imputation pursuant to a relevant reciprocal duty or interest both fall under the umbrella of "qualified privilege" does not mean that the defences may not be available in respect of the one imputation. Once that proposition is accepted, it follows that it is open for a defendant to rely on the existence of a relevant reciprocal duty or interest in order to ground a defence of qualified privilege in circumstances where the defamatory imputation could not properly be characterised as a fair and accurate report of judicial proceedings[143].

In reaching the above conclusions, it has not been necessary to consider the accuracy or otherwise of the decision of the Full Court of the Supreme Court of New South Wales in Thom v Associated Newspapers Ltd[144], upon which the appellant relies. In that case, the Court upheld a jury direction to the effect that, if a publication relied upon as a fair report pursuant to s 14 of the 1958 Act was unfair, it could not, on the evidence before the court, be privileged under the statutory equivalent of qualified privilege contained within s 17 of that Act[145]. Several points may be made in distinguishing Thom from the present case. First, the jury direction was given in the terms outlined above where there was no evidence to support a defence of qualified privilege under s 17 of the 1958 Act[146]. Indeed, "when asked, counsel for the appellant was unable to inform the court of any such evidence that conceivably could be available"[147]. Secondly, it is important to recognise that Thom related to the availability of multiple defences under the 1958 Act. As noted earlier in these reasons, that Act sought in large part to codify the common law[148]. In this case, however, the 1974 Act governs proceedings and, as noted above, that Act revives the common law and expressly provides that the provision of a statutory defence does not, of itself, vitiate the availability of the equivalent defence at common law (s 11). It follows that the introduction of the statutory defence of fair protected report pursuant to s 24 of the 1974 Act can have no bearing on the availability, under the common law, of individual categories of qualified privilege in the manner discussed above.

The appellant's submissions on this issue should be rejected.

Common law qualified privilege - a reciprocal duty or interest?

The appellant contends that if, contrary to the submissions considered above, a defence of common law qualified privilege arising out of a reciprocal duty or interest is available in respect of an inaccurate report of judicial proceedings, the Court of Appeal erred in holding that it was available in the present case. The appellant further submits that, even if the principal part of the article was published on a privileged occasion, the privilege did not extend to that part of the article containing the defamatory imputation.

In considering whether or not the respondent was able to assert a defence of qualified privilege arising out of a reciprocal duty or interest, the primary judge divided the OHS Bulletin article into two parts. In respect of the principal part of the article, which dealt with Mr Bialkower's cross-claim, his Honour was satisfied that it[149]:

"was published on a privileged occasion, because Mr Bialkower's cross-claim raised issues which were of general interest to persons operating in the field of occupational health and safety. It concerned the copyright in information in a Chemwatch [material safety data sheet] which related to occupational health and safety matters ... Merkel J, without deciding the question of copyright, discussed the circumstances in which an implied licence for the use of material would arise. His Honour also discussed discretionary issues and held that, even if he had found that there was an infringement of Mr Bialkower's copyright, he would have refused relief on discretionary grounds ... These matters were obviously of interest to persons in the occupational health and safety field and the publication of a report of the case, at least insofar as it dealt with those issues, occurred on an occasion of qualified privilege."

In respect of the remaining section of the article (pars [32]-[38]), which dealt with ACOHS' original claim of contravention of s 52 of the TPA, Davies AJ noted that it "was not a matter of interest to persons in the occupational health and safety field, apart from the fact that the persons involved were persons who worked in that field"[150]. Nevertheless, his Honour concluded that this part of the article was also made on a privileged occasion. This was said to be because[151]:

"the judgment of Merkel J was of an interest to persons operating in the occupational health and safety field. Although the report concerning the s 52 claim would not alone have been the subject of qualified privilege, for there was no duty to report on it and there was no particular interest in the subscribers to the [OHS Bulletin] to receive information about it, nevertheless, the report was not irrelevant to the occasion."

In reaching this conclusion, his Honour did not appear to view himself as departing from the statement of three members of this Court in Bellino v Australian Broadcasting Corporation that[152]:

"at common law, privilege only attaches to those defamatory imputations that are relevant to the privileged occasion. Where a potentially privileged communication consists partly of matters relevant to the privilege and partly of matters that are not relevant, qualified privilege only attaches to that part which is relevant to the occasion."

The Court of Appeal unanimously upheld the primary judge's finding that the principal part of the article was published on a privileged occasion. The critical passage is contained in the reasons of Hodgson JA, with whom Sheller JA and Rolfe AJA agreed on this point[153]:

"I am satisfied myself that this was an occasion of qualified privilege. Occupational health and safety is a matter important for the common convenience and welfare of society, and communications on matters relevant to that issue to persons responsible for occupational health and safety do promote that common convenience and welfare. The respondent, having accepted subscriptions for a newsletter on such matters, was morally and legally obliged to publish for subscribers matters of significance on that topic, and the decision on the cross-claim in this case fell within that description. It is in my opinion irrelevant that failure to publish this particular report would not of itself have been an actionable breach of contract: it is in my opinion sufficient that there was a duty, moral and legal, to include matters of this type in the newsletter. I accept of course that one cannot create a licence to oneself to defame other persons by undertaking a contractual obligation to supply information[154], but the existence of a contract of the type that existed here does in my opinion support the existence of a duty of communication where there is truly a public interest in the communication being made[155]."

However, the Court of Appeal differed as to whether that part of the article which contained the defamatory imputation was also the subject of qualified privilege. Hodgson JA, with whom Sheller JA agreed, upheld Davies AJ's decision that pars [32]-[38] of the article were relevant to the subject-matter of the privileged occasion[156]. Rolfe AJA dissented on this point[157].

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[158]. 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.

In Roberts v Bass, Gaudron, McHugh and Gummow JJ described the defence of qualified privilege arising out of a reciprocal duty or interest in the following terms[159]:

"The common law protects a defamatory statement made on an occasion where one person has a duty or interest to make the statement and the recipient of the statement has a corresponding duty or interest to receive it[160]. Communications made on such occasions are privileged because their making promotes the welfare of society[161]. But the privilege is qualified - hence the name qualified privilege - by the condition that the occasion must not be used for some purpose or motive foreign to the duty or interest that protects the making of the statement."

That statement of principle is consistent with the proposition put in 1869 in the third edition of Starkie on Slander and Libel[162] that the "duty" spoken of cannot be confined to legal duties which may be enforced by curial remedy, "but must include moral and social duties of imperfect obligation". Starkie had used the expression "communications ... made in the discharge of any legal, or even moral duty" in the second edition, published in 1830[163], four years before Parke B in Toogood v Spyring[164] spoke of the "publication of statements ... made ... in the discharge of some public or private duty, whether legal or moral". Parke B continued:

"If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society".

Of that passage, Griffith CJ explained in Howe & McColough v Lees[165]:

"The reference to society does not mean that the person who makes the communication is under any obligation to publish, and is justified in publishing, it to the public at large, but that the interests of society in general require that a communication made under such circumstances to the particular person should be protected. The term 'moral duty' is not used in a sense implying that a man who failed to make the communication under the circumstances would necessarily be regarded by his fellows as open to censure, but in the sense implying that it was made on an occasion on which a man who desired to do his duty to his neighbour would reasonably believe that he ought to make it. It is obviously impossible to lay down a priori an exhaustive list of such occasions. The rule being founded upon the general welfare of society, new occasions for its application will necessarily arise with continually changing conditions."

The English Court of Appeal in a recent decision[166] may have extended the scope of the defence. Simon Brown LJ, who delivered the leading judgment in Kearns v General Council of the Bar, said[167]:

"To my mind an altogether more helpful categorisation is to be found by distinguishing between, on the one hand, cases where the communicator and the communicatee are in an existing and established relationship (irrespective of whether within that relationship the communications between them relate to reciprocal interests or reciprocal duties or a mixture of both) and, on the other hand, cases where no such relationship has been established and the communication is between strangers (or at any rate is volunteered otherwise than by reference to their relationship)."

For the purposes of this appeal, it is unnecessary to decide whether that reasoning should be accepted.

In determining the existence of privilege in the present case, the words of Dixon J in Guise v Kouvelis deserve mention[168]:

"[T]he very width of the principles governing qualified privilege for defamation makes it more necessary, in deciding how they apply, to make a close scrutiny of the circumstances of the case, of the situation of the parties, of the relations of all concerned and of the events leading up to and surrounding the publication."

Hence the caution by Jordan CJ in Andreyevich v Kosovich[169] that in order for the defendants in that case to succeed in the defence of qualified privilege:

"it was necessary that they should show by evidence 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".

One consequence of the matters which Dixon J and Jordan CJ emphasised is that, as has long been recognised[170], different minds, whilst informed of the legal principles, nevertheless may differ as to the outcomes in particular cases. Guise v Kouvelis[171] is an example, the majority of the Court differing from Dixon J as to the result. Another is that the outcome in this case cannot be guided by apprehension of what conceivably could be the outcome of other litigation where other considerations and evidence might be put forward in respect of other claims of occasions protected by qualified privilege[172].

The defamatory imputation complained of by the appellant was conveyed on an occasion of qualified privilege, and protected, in the sense explained by Griffith CJ in Howe & McColough[173], for the common convenience and welfare of society. Information Australia presented the OHS Bulletin as the "Plain English Guide to Workplace Health and Safety" written by an "expert editorial team". On its face, the OHS Bulletin was designed to assist those responsible for occupational health and safety in complying with relevant laws and regulations. The Commonwealth and each State and Territory has enacted such legislation[174]. One example is the Occupational Health and Safety Act 2000 (NSW) ("the NSW Act"). Section 3 of that Act identifies the objects of the Act as follows[175]:

"(a) to secure and promote the health, safety and welfare of people at work, > > (b) to protect people at a place of work against risks to health or safety arising out of the activities of persons at work, > > (c) to promote a safe and healthy work environment for people at work that protects them from injury and illness and that is adapted to their physiological and psychological needs, > > (d) to provide for consultation and co-operation between employers and employees in achieving the objects of this Act, > > (e) to ensure that risks to health and safety at a place of work are identified, assessed and eliminated or controlled, > > (f) to develop and promote community awareness of occupational health and safety issues, > > (g) to provide a legislative framework that allows for progressively higher standards of occupational health and safety to take account of changes in technology and work practices, > > (h) to protect people (whether or not at a place of work) against risks to health and safety arising from the use of plant that affects public safety."

The NSW Act, together with its Commonwealth, State and Territory counterparts, demonstrate a legislative recognition of the importance of improving health and safety in the workplace. The provision of information by corporations such as the respondent with respect to statutory and judicial developments in the field of occupational health and safety assists in the achievement of the legislative objectives set out above.

Moreover, it is significant that the OHS Bulletin was marketed directly by Information Australia to specific occupational health and safety professionals. Those professionals could, and did, subscribe to the OHS Bulletin for an annual fee of $395. Indeed, at the time of the publication of the relevant issue, the OHS Bulletin was available only by subscription. As a result, Information Australia was contractually obliged to provide those subscribers with information in printed form relevant to matters of occupational health and safety. Although the existence of such an obligation is not generally determinative, it is relevant when considering whether or not Information Australia possessed the requisite duty to publish, or interest in publishing, the impugned article[176].

Lastly, the subject-matter of the defamatory imputation itself is significant. As noted earlier in these reasons, the impugned article discussed Federal Court litigation that had a direct bearing upon the enforceability of copyright in material safety data sheets and which could be expected to be of significant interest to those responsible for health and safety in the workplace. As Merkel J noted at the commencement of the decision discussed in the article, "[t]he present matter involves a copyright dispute in relation to material safety data sheets (MSDSs) which contain safety information about hazardous substances and other chemicals used in workplaces throughout Australia"[177]. Importantly, ACOHS' s 52 claim against RABC, RMC and Mr Bialkower was an essential element of that dispute. As Merkel J again noted, Mr Bialkower's contention that ACOHS' use of the relevant material safety data sheets constituted an infringement of copyright was "part of his defence [to the s 52 claim] and also by way of cross-claim"[178]. To seek, as the appellant does, to portray Merkel J's analysis of the enforcement of Mr Bialkower's copyright in the data sheets as wholly isolated from the s 52 claim made by ACOHS is to ignore the course of the litigation before the Federal Court.

In such circumstances, and given the general interest of the community reflected in the consistent legislative recognition of the importance of furthering occupational health and safety in Australia[179], Information Australia possessed a duty, in the sense of the authorities, to provide subscribers with the information contained in the impugned article. That the duty owed by Information Australia may be characterised as one of imperfect obligation does not nullify its existence in the present case[180].

The appellant submits that the decision of the Judicial Committee in Macintosh v Dun[181] stands in the way of the conclusion reached above. In that case, the Board held that the provision of information for profit by a trade protection society to one of its subscribers did not give rise to qualified privilege arising out of a reciprocal duty or interest[182]. In so doing, their Lordships reversed the decision of this Court in Dun v Macintosh[183]. However, the "real question" before the Judicial Committee was expressed by Lord Macnaghten as follows[184]:

"Is it in the interest of the community, is it for the welfare of society, that the protection which the law throws around communications made in legitimate self-defence, or from a bona fide sense of duty, should be extended to communications made from motives of self-interest by persons who trade for profit in the characters of other people?" (emphasis added)

The phrase emphasised in the passage just quoted is sufficient to demonstrate the significant factual differences between Macintosh and the case presently before this Court. As noted earlier in these reasons, Information Australia provided information to subscribers that was designed to facilitate the furtherance of occupational health and safety consistently with legislative objectives to that effect. Although the "good of society in general" may, as the Privy Council decided in Macintosh[185], detrimentally be affected by the publication of hitherto confidential information regarding the commercial standing and financial position of a corporation, it is quite another thing to reach the same conclusion in respect of the information contained in the impugned article of the OHS Bulletin.

The remaining element of the defence of qualified privilege arising out of a reciprocal duty or interest may be dealt with shortly. On the evidence before the primary judge, it is clear that the recipients of the defamatory imputation contained in the relevant article possessed a corresponding interest in the subject-matter to which the imputation related. In Howe & McColough, Higgins J noted[186]:

"[T]he word 'interest', as used in the cases, is not used in any technical sense. It is used in the broadest popular sense, as when we say that a man is 'interested' in knowing a fact - not interested in it as a matter of gossip or curiosity, but as a matter of substance apart from its mere quality as news."

In the same case, Higgins J justified the existence of a requisite interest on the part of the recipients of the defamatory communication in the following way[187]:

"When information is given to these men as to the solvency of a buyer, it is not given to them as idle gossip; it is for solid business uses."

The subscribers to the OHS Bulletin were, in large part, individuals and corporations responsible for occupational health and safety in their respective workplaces. The information contained in the OHS Bulletin with respect to occupational health and safety was sought by those subscribers in order to assist them in complying with their statutory obligations. Such an interest cannot be regarded as "unsubstantial" or "remote"[188]. Moreover, the impugned article clearly dealt with a matter to which the interest of the subscribers related, being the refusal of injunctive relief with respect to copyright in material safety data sheets, one result of which could be the increased publication of those data sheets within the workplace. As noted earlier in these reasons, that issue encompassed the claim of contravention of s 52 of the TPA concerning which the defamatory imputation was made. It follows that the defamatory imputation was made upon an occasion of qualified privilege.

KIRBY J. At first glance this appeal[189] might appear to involve something of a storm in a teacup. A trade journal, reporting a published decision of a judge of the Federal Court of Australia, inaccurately referred to a finding in that decision. Incorrectly, it ascribed the judge's decision that a party had engaged in conduct which contravened s 52 of the Trade Practices Act 1974 (Cth) to the appellant personally, Mr R A Bashford, rather than to the consulting company that bore his name, R A Bashford Consulting Pty Ltd.

In cross-examination, the appellant agreed that, in the eyes of the marketplace, he and the company were "effectively one [and] the same"[190]. The primary judge in the trial of defamation proceedings in the Supreme Court of New South Wales (Davies AJ) found that the company was "a private company established by Mr Bashford and his wife and all Mr Bashford's consulting activities were carried out in the name of his company"[191]. On the face of things, so much fuss about the failure of the publisher to add "three little words" ("Consulting Pty Ltd") to its report about the judgment might seem a trifle precious.

Nevertheless, it is clear that a factual inaccuracy occurred; that the publisher rebuffed a demand from the appellant to publish a correction and apology[192]; and that a jury, performing their limited function in the trial[193], determined that the matter complained of carried an imputation that was defamatory of the appellant. As found by the jury, this was "that the Plaintiff ... had been found by the Federal Court of Australia liable to ACOHS Pty Ltd in damages and costs for causing it harm and loss".

In this appeal, these facts represent the starting point from which this Court was asked to proceed. Although the primary judge dismissed the appellant's claim on a footing later contested in the Court of Appeal, he prudently proceeded to calculate the damages to which the appellant was entitled, if the filed defences were rejected on appeal. He fixed such damages at $25,000. That sum is not contested[194]. This is not a large sum as defamation verdicts go[195]; but it is not derisory.

In a perfect world, defamation proceedings would be available for the redress of wrongs to reputation, large and small, including those which, considering all things, might not seem terribly important except to the person defamed and perhaps that person's family and close friends. But this appeal, like others[196], illustrates the pitfalls that face litigants who enter the lists in this country to repair their hurt feelings and to seek redress for wrongs to their reputation by invoking the law of defamation. Within the Court of Appeal[197] (and now in this Court[198]) differing opinions are expressed concerning the availability of the defences invoked by the publisher. At least in this case, no party invoked the Constitution to complicate the ambit of those defences[199].

The background materials: The matter complained of is set out, or described, in other reasons[200]. Also detailed there are the background facts concerning the original proceedings before Merkel J in the Federal Court of Australia[201]; the actual orders made by that judge against R A Bashford Consulting Pty Ltd[202] and the course that the appellant's claim in defamation took at trial[203].

Those reasons also describe the differences of opinion that emerged in the New South Wales Court of Appeal between the majority[204] (Hodgson JA, with whom Sheller JA agreed) and the dissenting judge (Rolfe AJA).

Other reasons also contain reference to most of the provisions of the Defamation Act 1974 (NSW) ("the Act") applicable to the proceedings, to which it will be necessary to refer. These include the unique provision governing the trial of defamation actions in New South Wales, delineating the respective roles of the jury and of the judge, and the structure and key provisions of that Act concerning the applicable law[205]. The saving provisions of s 11 of that Act are also set out, or described, there[206]. Although there are provisions elsewhere that bear some similarities to s 11 [207], a full appreciation of the purpose of s 11 can probably only be had by a recollection of the controversies that attended the attempt in 1958 to codify the law of defamation in New South Wales[208]. That venture was ultimately abandoned, with the complete repeal of that Act, the enactment of the present Act [209] and a revival, with respect to matters published after the commencement of the latter Act, of the "common law and the enacted law" that had preceded it, subject of course to modification by the Act's provisions[210].

Statutory protected reports: I need repeat none of the foregoing material (nor conclusions of the Court of Appeal not now disputed[211]). However, it is relevant to add to the statutory references, mention of those provisions of the present Act that afford protections to court proceedings and reports about them.

Such provisions are contained in Pt 3 of the Act ("Defence in civil proceedings"). That Part has various divisions. These include "Truth" (Div 2); "Absolute privilege" (Div 3); "Qualified privilege" (Div 4); "Protected reports etc" (Div 5); "Court notices, official notices etc" (Div 6); "Comment" (Div 7); and "Offer of amends" (Div 8). Within Div 3, dealing with absolute privilege, are contained 36 sections (omitting one repealed) that extend absolute privilege to the publication of proceedings before a very wide range of specified bodies, extending far beyond the traditional categories of that privilege at common law.

The defence of qualified privilege (Div 4) includes a statutory defence[212] that arises in respect of matter published to any person where "the recipient has an interest or apparent interest in having information on some subject, [and] the matter is published to the recipient in the course of giving to the recipient information on that subject". However, it is a condition of the application of statutory qualified privilege that "the conduct of the publisher in publishing that matter is reasonable in the circumstances"[213]. In this Court, the publisher did not seek to bring itself within that defence. Presumably, this was because of perceived difficulties in establishing compliance with the condition of reasonable conduct in the circumstances.

The particular provisions of the Act governing "protected reports" are contained in s 24. By that section, "[t]here is a defence for the publication of a fair protected report"[214]. "Protected report" is defined to mean "a report of proceedings specified in clause 2 of Schedule 2 as proceedings for the purposes of this definition"[215]. Within that clause it is provided that "[t]he following proceedings are specified for the purposes of the definition of 'protected report' in section 24(1)". The fifth paragraph in the ensuing list states "proceedings in public of a court". By cl 1 of Sched 2 "'court' means a court of any country". Although appearing in a State Act that definition, in the context, would be wide enough to include proceedings in the Federal Court of Australia. Other provisions in cl 2 of Sched 2 replicate a large number of proceedings before the wide variety of specified tribunals and other bodies, established by State legislation, as earlier mentioned in Div 3 ("Absolute privilege").

Requirement that reports be fair: To attract the statutory protection, the only adjective used in s 24(2) of the Act is "fair". In this respect, the Act has adopted a terminology slightly different from that traditionally applicable to such a defence at common law[216]. In the Defamation Act 1912 (NSW), for example, it was provided, relevantly, that no civil action was maintainable in respect of a publication in good faith for the information of the public "in any newspaper" of "a fair and accurate report of the public proceedings of any court of justice, whether such proceedings are preliminary or interlocutory or final, unless, in the case of proceedings which are not final, the publication has been prohibited by the court"[217]. Provision was also made in the 1912 Act for a defence for publication of "a copy or an abstract of any judgment, or of the entries relative to any judgment, which are recorded in any books kept in the office of any court of justice"[218].

The exceptions in the 1912 Act, in respect of fair and accurate reports of specified proceedings, were collected under the divisional heading "Qualified privilege". That arrangement gives some indication of the way in which the categories of fair and accurate reports were generally regarded in Australia in the first half of the last century. Provided such reports were fair and accurate and otherwise complied with the conditions of the 1912 Act, they attracted a defence of privilege. But it was not an absolute privilege. It was "qualified". Amongst the qualifications attaching was the requirement that the report must be "fair and accurate". Under the present Act, this formula has been replaced by the simple requirement that the report must be "fair". However, there is no relevant distinction. An inaccurate report, at least in respect of the identification of a party to a judgment of a court that has found a person in breach of the law, could not be "fair".

Arranging the issues logically: Despite the order of the grounds of appeal filed in this Court[219], I agree with Callinan J that it is logical to deal first with the threshold point raised by the appellant's third ground. According to that ground, where a case falls to be considered under the statutory defence of protection for a fair report of court proceedings (or a common law defence of a fair and accurate report of such proceedings) that category applies to state the relevant defence to the exclusion of any separate and different category of qualified privilege attaching to the making and receiving of statements published between persons with a corresponding duty or interest to make and receive them.

The reason why this ground comes first is obvious. The matter complained of here was inaccurate. It was not fair to the appellant. It would not therefore attract either the statutory "protected report" defence or any residual common law defence for such a report. If, therefore, the only applicable defence of qualified privilege in the circumstances was the one requiring the accuracy of reportage of court proceedings and their outcomes (to the exclusion of any other general defence of qualified privilege), the publisher would fail in the defence. The subordinate issues would not then arise.

The consequential issues: For these reasons, the issues for decision in this Court, in logical order, are:

(1) Whether, when the matter complained of involved reportage (relevantly) of judicial proceedings, the only applicable defence to protect such report is one concerned with the "fairness" (or "fairness and accuracy") of the report. Or whether, even if these requirements are unfulfilled, it remains open to the publisher to invoke a more general defence of qualified privilege in respect of an inaccurate report of such proceedings. (The scope of the protected report issue);

(2) If the answer to (1) is that qualified privilege may protect an inaccurate report of such proceedings, whether the occasion of the publication in question in these proceedings was one attracting qualified privilege at common law, it being conceded that no claim was available for qualified privilege under the Act. (The scope of the qualified privilege issue); and

(3) If the matter complained of was published on an occasion of qualified privilege, whether the part of that publication found to have been defamatory of the appellant was within such privilege, in the sense that it was sufficiently connected to the privileged occasion to attract qualified privilege so as to give rise to the defence. (The relevance to the privileged occasion issue).

A "strange" outcome: In the Court of Appeal, Rolfe AJA expressed the opinion that, where a person has communicated material on a subject on which the recipient had an interest in receiving that material, but has done so in the form of a report of court proceedings, there is no reason why "any such report should not be, conformably with established principles, accurate"[220]. He suggested that the contrary conclusion seemed "somewhat strange, particularly against the background of reciprocal rights and duties to receive and furnish information"[221]. Without finally deciding the point, Callinan J has expressed a similar inclination on the footing that the application of differing defences (with differing requirements as to accuracy) in respect of communications comprising reports of court proceedings appears "anomalous and productive of an incoherence in the law"[222].

At first I shared this opinion. It is not without certain judicial support[223]. The appellant suggests that this Court should uphold the point substantially upon the basis of the policy of the law that the public, and individual recipients of information about judicial proceedings, are entitled to have reports of that kind which are fair and accurate, such that this basal requirement may not be overridden by invoking other defences, applicable to other, different, communications having different characteristics and requirements.

Court reports "stand apart": In support of this approach, the appellant strongly relied on Lord Uthwatt's reasons for the Privy Council in Perera (M G) v Peiris[224]:

"Reports of judicial and parliamentary proceedings and, it may be, of some bodies which are neither judicial nor parliamentary in character, stand in a class apart by reason that the nature of their activities is treated as conclusively establishing that the public interest is forwarded by publication of reports of their proceedings. As regards reports of proceedings of other bodies, the status of those bodies taken alone is not conclusive and it is necessary to consider the subject-matter dealt with in the particular report with which the court is concerned. If it appears that it is to the public interest that the particular report should be published privilege will attach."

The notion that there is something special about judicial (and parliamentary and some other) proceedings, so that they "stand apart", is a recurring one in the case law[225]. This notion lends support to the submission that, subject to any valid statutory provisions to the contrary, where the communication is in the form of a report (relevantly) of judicial proceedings, it is a universal prerequisite of any defence based on such a report that it must be fair (including accurate)[226].

The point presented by the appellant on this first issue is not the subject of an authoritative decision of this Court. It must therefore be resolved by reference to the usual considerations that inform decisions on such issues. Where a statute speaks and is constitutionally valid, a court must give it effect. A court has no authority to adhere to pre-existing law in the face of contrary provisions in legislation[227]. But if a statute does not resolve the matter, the court must do so in a principled way, drawing upon any analogous authority and any applicable legal principle and legal policy[228].

A universal statutory requirement? Turning to the statute, it must be said that it is not entirely clear. It is true that s 11 of the present Act states (with emphasis added) that "[t]he provision of a defence by this Part [such as the defence of protected report of court proceedings] does not of itself vitiate, diminish or abrogate any defence or exclusion of liability available apart from this Act". However, it remains necessary, where some other, general common law defence is postulated on the basis of s 11 of the Act, to reconcile the highly particular provision for "protected reports" in s 24 of the Act with the revived and continuing common law defence of "fair and accurate report" and the qualified privilege relied on by the publisher as applicable alongside s 24.

It is open to ask, as the appellant did, what room is left for the defence of publication of a fair protected report when, by s 24 and Sched 2 of the present Act, Parliament had gone to so much trouble to enact detailed and particular provisions on that very subject. If the defence for reports (relevantly) of proceedings in a court were to be at large, with no universal requirement for "fairness" (or accuracy), the operation of the postulate for the publication of reports of judicial proceedings enacted in s 24(2) of the Act would, to that extent, be undermined, or certainly qualified.

In effect, this argument amounts to a kind of expressio unius contention[229]. Because, in the present Act, Parliament has specifically addressed the subject of reports of certain proceedings (including proceedings in public of a court[230]) the proposition is that pre-existing and general provisions of the common law (including the common law defence of qualified privilege invoked by the publisher) are overridden by the high particularity of the enacted provision for "protected reports". As the argument proceeds, although the provision of s 24 of the Act does not "of itself" have the effect to "vitiate, diminish or abrogate" other common law defences relevant to protected reports, when such defences are placed alongside the particularity of s 24, they cannot survive. They evaporate because of the strong and clear indication of the legislative purpose that to have a defence in such a case all such reports must be fair and, if they are not, they are unprotected.

Supporting this notion, the appellant relied not only upon the textual particularity of the Act but also the "strangeness" of the contrary proposition that "fairness" (and accuracy) could be treated as inessential by the simple device of side-stepping the defence of "protected report" and resorting to the common law defence of "qualified privilege" in respect of the self-same report. For the appellant, this was not a result consistent with the language and scheme of the Act dealing with "protected reports".

Need for accuracy of court reports: Support for the appellant's submission exists in the policy of the law, reflected in s 24 of the Act, insisting on a special status (relevantly) for court reports, on the footing that judicial proceedings can often give rise to highly defamatory and damaging statements which, if reported, should only be protected so long as such reports are accurate[231]. If such a universal rule were established, it would have the merit of promoting particular care in the reporting of judicial proceedings. It would establish a discrete category where accuracy was essential in a class of communication which, of its very nature, is of great public importance. In so far as the common law has not previously expressed such a discrete rule, the appellant invited this Court to do so in fulfilment of its function of stating the common law of Australia in ways that are not merely historical but also conceptual, principled and rational[232].

The Act allows multiple defences: Whilst these arguments have force, they should not be accepted. The starting point is the Act; because if it establishes an exclusive regime for protected reports of judicial proceedings, this Court will be unconcerned with common law rules. The history, language and structure of the Act tell against treating s 24 as an entire regulation of the law of defamation in respect of reports of the proceedings specified there. The present Act had, as a major objective, the abolition of the codification that had been adopted in the 1958 Act[233]. Its object was to revive the common law of defamation, modified, in part only, by particular statutory provisions. That object was not left to inference. It was spelt out in s 11. The fact that that section refers to "any defence or exclusion of liability" makes it clear that the purpose of the Act was to revive all of the many defences and protections that had previously existed by the common law. In this sense, the present Act is confined to the regulation of essential, or "core", matters upon which Parliament made its will unmistakable. Beyond such matters, the common law had been left to apply and develop.

There is a further reason why s 11 should not be given a narrow interpretation. Not only is it somewhat peculiar in its terms (a reflection of its history). It is also a provision that tends to uphold freedom of expression, an important civil right[234]. It is true that the enjoyment of one's honour and reputation, the defence of which is mentioned as an exception to freedom of expression, also constitutes an important civil right, recognised as such by the common law and by international human rights law[235]. The object of the Act is to assist in procuring a proper balance between these rights which are in competition. But, as its heading indicates, the particular purpose of s 11 is to provide for common law defences. It is therefore aimed at securing a balance that ensures the enlargement of common law defences so as to enhance the zone of free expression. Where a statute is ambiguous, it is permissible to resolve its ambiguity by preferring the construction that advances the apparent object of Parliament in a way that promotes the attainment of fundamental civil rights[236].

This conclusion is further reinforced by the structure of the Act. Part 3 of the Act contains several defences. There is no hint in the Act that such defences represent closed categories, obliging a party sued to elect amongst them. On the contrary, the language of the defences suggests that, in particular cases, two or more of them may apply concurrently. Taking only the first two defences mentioned as examples, it may frequently be the case that a publisher will wish to defend an action for defamation on the basis that "the person defamed was not likely to suffer harm" (s 13) but also on the basis that "the imputation is a matter of substantial truth, and ... either relates to a matter of public interest or is published under qualified privilege" (s 15). Just as plaintiffs are entitled to (and commonly do) express their claims in terms of alternative causes of action arising at common law or under a statute, so defendants are ordinarily entitled to invoke each and every applicable defence provided by law (whether by statute or the common law).

It follows that, whilst the high particularity of the Act's treatment of "protected reports" in s 24 at first glance suggests to a legal mind an exclusive treatment of the subject matter of that section, with the consequence that such reports must always be shown to have been "fair", a closer analysis of the Act denies that proposition. The several defences supplement any common law defences that are revived. They overlap one another. A publisher is entitled to invoke so many of them as are applicable. This also conforms to ordinary pleading practice. Accordingly, notwithstanding an inability to attract the statutory defence of "protected report", if a publisher can establish that some other defence (such as qualified privilege) applies to the occasion of the publication, it may have the protection of that defence. Neither in its express terms, nor by necessary implication, does the Act forbid this construction.

The common law allows multiple defences: When one leaves the language of the Act, and considers the first issue solely in terms of the common law defences of qualified privilege and "fair and accurate report"[237], the position is even clearer.

From their respective origins at common law (and in the manner of the development of that body of law), the defences grew out of different needs, occasioning different judicial holdings. They supplemented, and did not contradict, one another[238]. Obviously, where the more particular defence (absolute privilege or fair and accurate report) applied, it was commonly unnecessary to decide fine points arising from the possible application of a more general defence of qualified privilege. But if, because the requirements of the specific defence were not met, it became essential to invoke the general common law of qualified privilege, there was no reason of legal principle why it should be unavailable[239].

Nothing in the repeated judicial statements concerning the importance to the public of accurate reporting of judicial (and parliamentary and other) proceedings is undermined by the invocation of common law qualified privilege, where it applies. The social objects of each defence are different; but are equally important. The specific one treats the public interest as conclusively established by proof that a report of certain proceedings is fair (and accurate). The other upholds the public interest "where one person has a duty or interest to make the statement and the recipient of the statement has a corresponding duty or interest to receive it"[240]. Each defence, in its different way, "promotes the welfare of society"[241]. Legal history rejects any suggestion that a publisher must make an irrevocable election between such defences. The welfare of society does not oblige that such an election should now be imposed by this Court.

Conclusion: privilege available: The first issue must therefore be determined against the appellant. Neither as a matter of statutory construction, nor as one of legal authority, principle or policy, can it be said that the defence of fair and accurate report "eclipses" any relationship otherwise giving rise to a defence of qualified privilege.

On the second issue (accepting that qualified privilege attaches) there was unanimity of opinion in the Supreme Court. A majority of this Court takes the same view, as do I.

The test for determining whether a particular publication was made on an occasion of, and germane to a subject matter attracting, qualified privilege at common law is whether there was the requisite reciprocal duty or interest between the publisher of the matter complained of and its recipients[242]. In this case, such reciprocity was present. In the reasons of Gleeson CJ, Hayne and Heydon JJ ("the joint reasons"), by reference to the analysis of Hodgson JA in the Court of Appeal[243], it is concluded that the necessary indications are present to attract qualified privilege[244]. I agree. However, I wish to add an observation about one feature of the case that has attracted the attention of other members of this Court.

Early in the last century, in Macintosh v Dun[245], reversing a decision of this Court, the Privy Council deployed language that suggested that the provision of information for fee or profit would deprive a publisher of any qualified privilege to which the occasion of the publication was otherwise entitled[246]. The passages are set out in the joint reasons[247].

Since that time there have been many developments that make such a suggestion highly doubtful as a proposition of law. True, in particular circumstances, the receipt of a fee might indicate that a publisher was trading in salacious or malicious gossip, sold for entertainment. But more commonly it would indicate the serious purpose of the publication and the assumption of contractually enforceable obligations and expectations of accuracy and fairness. The growth of credit and other reporting bodies that provide business information about individuals (sometimes based on court reports) is a case in point. Whatever might have been the position a hundred years ago, I do not consider that the Privy Council's dictum in Macintosh[248], stated so broadly, represents the common law of Australia today.

This Court is no longer bound by decisions of the Privy Council. Macintosh should now be treated as overruled in this respect. The payment of a fee, as such, does not deprive an occasion of a publication of any privilege otherwise attaching to it[249]. I feel no obligation to persist with dubious efforts to distinguish Macintosh[250], or to await its correction by statute[251]. In particular circumstances, of which the present is an instance, the payment of a fee to the publisher for the information provided may actually reinforce the necessary element of reciprocity. If there is salaciousness or malice in a publication purchased for fee, any qualified privilege otherwise attaching may be lost for such reasons. The salaciousness or malice may snap the connection with the propounded subject matter. They may contradict the propounded interest and duty. But qualified privilege will not be lost for the payment of the fee as such.

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 AJA[252] 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"[253] so as to "afford evidence of malice which will take away protection on the subject to which privilege attaches"[254] or otherwise take that part of the publication outside the protection of the privilege?

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.

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[255], 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[256]. 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"[257]. A still further criterion of connection, apparently derived from Canadian formulations[258], was that applied by Sheller JA[259] and Hodgson JA[260] 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.

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[261]. 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[262].

Care must be observed in taking too literally the test propounded by Brennan CJ in Bellino[263]. Because, as Callinan J notes[264], 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.

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[265]? 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"[266]. 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.

Application of the test: When the test of relevance to the privileged occasion is applied to the circumstances of this case, I agree, for the reasons given by Gummow J[267], that it is impossible to treat the report of Merkel J's analysis of the enforcement of the copyright claim over the data sheets as irrelevant to the subject matter enlivened by the claim made under s 52 of the Trade Practices Act. By common consent, the latter viewed as a whole was sufficiently relevant to a discussion of the subject matter, occupational health and safety, as to constitute communication on a clear matter of public interest.

The publication of the false and defamatory imputation concerning the appellant was hurtful. But, as such, the subject was not irrelevant to the occasion of the publication. Still less was it gratuitous and lacking in relevant connection with the subject matter. That subject matter had arisen out of the same litigation in the Federal Court. It was historically and legally connected. It was agreed for the appellant that malice or want of good faith could not be proved. Thus, whilst neither the statutory defence of protected report nor the common law defence of fair and accurate report was available to, or indeed pleaded by, the publisher, the defence of qualified privilege was available. It was not lost because of the mistaken reference to the appellant in the place of his company.

Response to the minority: With respect, there are several flaws in the reasoning of the minority on the issues of qualified privilege. First, they effectively demand that the publication always be perfectly accurate, without factual errors. This is most evident in the reasons of Callinan J, which state that "the making of any wrong statement cannot possibly be for the common, indeed any good, or in the public, or indeed any narrower interest"[268]. Such an approach would introduce a strict truth requirement that has not hitherto been part of the common law of qualified privilege. In my view, this Court should not now introduce that requirement, given the purpose and function of that defence. An important attribute of qualified privilege is that the defence is available where the defence of truth (however expressed) may be unavailable.

Secondly, the minority appear to overlook the large expansion and variety of publications in Australian society today, including on specialised subject matters of importance and benefit to society. Occupational health and safety is only one such subject matter. The common law of qualified privilege must adapt to such changes and also to the technologies that make them possible. This is a reason for reading some of the old cases with critical scrutiny. The exchange and expression of views upon such subject matters may attract the defence of qualified privilege given the reciprocity of interest and duty that such publications commonly involve for their particular audiences. To withdraw the defence, or to hold that it is lost because of a factual error, would seriously burden such publications and thus community discussion upon specialised subject matters that conduce greatly to the convenience and welfare of society. The position of such publications is separate and different from the case of the general or mass media.

Thirdly, the minority overstate the significance of this decision and the limited circumstances to which it responds. In particular, McHugh J's reference to "dancing in the streets"[269], quickly qualified (as if recognising the hyperbole), seems, with all respect, to overestimate not only the implications of the majority reasoning in this case, but also the subject matters over which Australians display their emotions publicly.

Although the basic principles of qualified privilege are well settled, I do not suggest that they are always easy to apply. Opinions will differ concerning their application in a particular case, as they have differed here. However, the decision of this Court rejects an absolute requirement of factual accuracy that would alter existing law, cripple the defence of qualified privilege, impose a chilling effect on legitimate communications and undermine the distinct advantages that modern technology brings to specialised publications.

The majority are therefore correct, in my view, to resist the errors into which the minority would lead the law. If there will be "dancing in the streets" (which I doubt), it is because a serious legal error inimical to free expression has been avoided.

In a more logical system of defamation law (such as that followed in most countries of the civil law tradition) the solution to the present case, in the absence of a voluntary acknowledgment of mistake as the appellant sought, would have been a court-ordered publication, with adequate prominence, identifying the publisher's error and correcting it with a statement of the true facts as found[270]. That remedy, which acknowledges that the recipients of any publication normally have an interest, beyond those of the parties, in receiving correct information, was proposed more than twenty years ago by the Australian Law Reform Commission[271]. The Commission referred to the "inadequacies of present remedies, the limitations of awards of damages and the unfortunate consequences of the 'damages or nothing' approach"[272] that mark present defamation law. It commented that "[t]he correction order should at once provide a genuine plaintiff with a more effective remedy and reduce the burden of damages, with their consequences for the diminution of freedom of speech"[273]. The proposal was not enacted.

The present appeal illustrates once again the defects of the current law[274]. The appellant had a genuine grievance which the publisher declined to correct. As it was found, the appellant suffered damage to his reputation. The case was not a big one; but it was important to the appellant. Once again, the law of Australia has failed to afford appropriate redress to an understandable grievance. Instead, it has ensnared the parties in complex proceedings of uncertain statutory and common law and peculiar procedures involving great delays and much cost and anxiety to them both.

Eventually, the parties were yoked together in a Herculean struggle where the burden of accumulated costs quite possibly overtook the importance of the dispute that initially lay between them. The outcome is not a proud moment for the law. It affords another reminder of the need for law reform. As many judges and law reform bodies have recognised, the path to such reform lies in the direction of changed procedures, including enforceable rights of correction and reply.

I agree that the appeal should be dismissed with costs.

CALLINAN J. This appeal, in defamation proceedings, raises important questions of principle in relation to qualified privilege: in particular, whether the occasion with which the Court was concerned was one of qualified privilege; and, if it could be so designated, whether the matter published was either not relevant, or of such limited relevance to the publication of the matter actually attracting the privilege (if any) that the matter published should be regarded as falling outside the privilege. I should say at the outset that McHugh J has dealt very fully with the first of the questions, and has reached a conclusion on it with which I agree.

ACOHS Pty Ltd ("A") brought an action in the Federal Court against R A Bashford Consulting Pty Ltd ("Consulting"), Risk Management Concepts Pty Ltd ("Risk") and Mr Bialkower. The last made a cross-claim against A. The action was heard by Merkel J who found in favour of A. Relevantly his Honour made orders as follows:

"1. The Court declares that:- > > (a) in publishing or causing to be published an item entitled 'Chemwatch Wins Copyright Case' on 2 December, 1993 [Consulting] and [Risk] engaged in conduct in trade and commerce which contravened s 52 of the Trade Practices Act 1974 (Cth); > > (b) [Mr Bialkower] was a person involved in the said contravention within the meaning of s 75B of the said Act. > > 2. [Consulting, Risk and Mr Bialkower] pay damages in the sum of $20,000.00 to [A]. > > 3. The Application of [A] be [otherwise] dismissed. > > 4. The Cross-Claim of [Mr Bialkower] be dismissed. > > 5. (a) The Court declares that [Consulting] and [Risk] are entitled to contribution from [Mr Bialkower] in an amount equal to 75 per centum of the damages and costs ordered to be paid by them. > > (b) [Mr Bialkower] indemnify [Consulting] and [Risk] in an amount equal to 75 per centum of the damages and costs ordered to be paid by them. > > 6. The Cross-Claim of [Consulting] and [Risk] against [Mr Bialkower] be otherwise dismissed. > > 7. [Consulting, Risk and Mr Bialkower] pay one-third of [A's] taxed costs of and incidental to the proceeding. > > 8. [Mr Bialkower] pay two-thirds of [A's] taxed costs of and incidental to the proceeding. > > 9. [Mr Bialkower] pay to [Consulting] and [Risk] one-third of their taxed costs of and incidental to the proceeding."

The appellant gave evidence during the trial. His name assumed no prominence in the reasons for judgment.

The proceedings before Merkel J arose out of the publication of a newsletter, relating among other things to the handling of chemicals. The appellant was not alleged to have been personally involved in the publication and therefore not himself to have been, to use the language of s 75B(1)(c) of the Trade Practices Act 1974 (Cth), "in any way, directly or indirectly, knowingly concerned in, or party to" the misleading or deceptive conduct constituted by it[275]. The precise role of Consulting, of which the appellant was a shareholder and director, in the publication by no means emerges with any clarity from the reasons of Merkel J. Nonetheless, the orders made by his Honour were made in unmistakable terms and clearly identified the legal personalities against whom the orders were made and were to operate.

The respondent is also a publisher. It publishes a periodical occupational health and safety bulletin ("the bulletin") fortnightly to subscribers who pay an annual fee of $395. On 28 May 1997, almost three weeks after Merkel J delivered his judgment, the respondent published a bulletin in which the matter complained of appeared under a headline "MSDS copyright case dismissed". The article commenced with the following:

"Material safety data sheets should not be too restricted by copyright - they should as much as possible be available to enforce OH&S, according to a Federal Court ruling in the past fortnight. > > The Court has dismissed a claim by a chemical information database company which alleges its main competitor, Victorian-based ACOHS Pty Ltd, breached copyright by transcribing 43 material safety data sheets (MSDS) into its database. > > Bernie Bialkower, proprietor of Chemwatch, claimed the MSDS - the primary vehicle for providing chemical safety information to the workplace - were original literary works authored by himself and his employees. > > He sought an injunction preventing ACOHS from further infringing his copyright and an order requiring ACOHS to surrender copies of the 43 MSDS. > > ACOHS, which received the MSDS from manufacturers before entering them into its Infosafe database, denied infringing Bialkower's copyright. > > Justice Merkel of the Federal Court in Melbourne, dismissed Bialkower's claim, saying he had not adequately shown he owned copyright of the 43 MSDS."

There then followed some direct quotations from the judgment of Merkel J and commentary upon them. Included in the commentary was this:

"The breach of copyright allegations were made by Mr Bialkower in response to an action initiated by ACOHS in 1993. > > ACOHS sued the publishers of a newsletter called Infax which had printed a report claiming ACOHS was one of two companies Bialkower successfully prosecuted for MSDS copyright infringement. > > ACOHS also sued Bernie Bialkower as he had provided the information for the report. > > Mr Bialkower then made the counter-claim, accusing ACOHS of copyright infringement. > > In respect of the initial claim, Justice Merkel found the publishers of Infax newsletter, RA Bashford and Risk Management Concepts, had engaged in false and misleading conduct by publishing an incorrect report - there had been no such copyright case - and that Bialkower was the source of the information and authorised its publication. > > He ruled publication of the 'seriously misleading statements caused harm to ACOHS's repute and goodwill and that harm is likely to have led to some loss of business or custom'. > > He awarded ACOHS $20,000 damages and ordered Bialkower, RA Bashford and Risk Management Concepts to pay their legal costs."

Before she wrote the article its author, a journalist, telephoned the appellant to ask him to comment on the decision. The appellant declined, but warned the journalist that she should be very careful about what she wrote because of the complexities of the case.

Following the publication of the bulletin the appellant's solicitors protested on his behalf, and sought an apology from the respondent. The letter was admitted into evidence. It stated several matters of fact:

"In the newsletter you stated, inter alia: > > 'RA Bashford and Risk Management Concepts had engaged in false and misleading conduct by publishing and [sic] incorrect report ...' and ... 'ordered Bialkower, RA Bashford and Risk Management Concepts to pay their legal costs.' > > The Court made no such finding. RA Bashford was not a party to the proceedings at all. The Respondent involved was RA Bashford Consulting Pty Ltd ('Consulting'). Consulting is not mentioned in the judgment at all except in the introduction and in the formal orders. > > There is no mention of our client being involved in the commission of any false or misleading conduct. Consulting's only involvement was after the event and aimed at mitigating the effects of an erroneous article in the 'In Fax' Newsletter. > > Notwithstanding that our client is a director and shareholder of Consulting (one of the actual Respondents) you also failed to identify that Consulting was provided with a 75% indemnity by the other Respondent with respect to damages and the costs of the case. > > Our client is a non practising barrister who specialises in the workers' compensation and occupational health and safety areas. The publication of your newsletter is directed to our client's specialty of work and his client's. The recognition of our client's name as a person with expertise and a reputation in the field of occupational health and safety is critical to his profitability. Additionally, our client is authoring a CD Rom which deals specifically with workers' compensation and occupational health and safety issues Australia-wide. Your newsletter has been forwarded to many of the corporations which would be potential customers for the services of our client. > > ... > > The newsletter is also defamatory of our client and he has been seriously hurt and embarrassed by its publication. > > Our client has instructed that he has already pointed out to you the errors in your newsletter and has provided to you his telephone number so that you could attempt reparation, but we are instructed, you have not had the courtesy to return our client's telephone calls. > > We invite you to publish at the earliest possible date an apology to our client in the following terms: > > 'On 28 May 1997 the Information Australian Newsletters published an article in its Occupational Health and Safety Bulletin which referred to Mr RA Bashford. The Information Australia Newsletters unequivocally recognises that the statements it made referring to Mr RA Bashford were false and without foundation. > > The Information Australia (Newsletters) unreservedly apologises to Mr Bashford for any hurt and embarrassment that the publication of the statements may have caused to him.' > > Notwithstanding that you may publish an apology in the form requested, our client reserves his rights to claim damages and costs by reason of the publication. We put you on notice that your failure or refusal to publish the requested form of apology to our client, will be relied upon as conduct aggravating the damages suffered by our client because of the offending publication."

To the facts stated in the letter should be added these which were found by Davies AJ at first instance:

"It seems that [the appellant's] relief at the result of the Federal Court proceedings was shattered when he read the article in the Occupational Health and Safety Bulletin, which not only named him personally, but described him as one of the publishers. [The appellant] apparently felt that all his efforts to distance himself from the Infax newsletter, efforts which he considered to have achieved success in the Federal Court proceedings, were destroyed by the article in the Occupational Health and Safety Bulletin."

No apology was published. The appellant sued the respondent in defamation in the Supreme Court of New South Wales. By way of defence the respondent denied that it had defamed the appellant. One of the imputations pleaded was found by a jury to have been conveyed and to be defamatory of the appellant:

"that the Plaintiff, by publishing a false report concerning ACOHS Pty Ltd, had been found by the Federal Court of Australia liable to ACOHS Pty Ltd in damages and costs for causing it harm and loss".

It then fell for a judge of the Supreme Court (Davies AJ) to decide, in accordance with s 7A of the Defamation Act 1974 (NSW) ("the Act"), whether any of the other defences of the respondent were made out, and the damages for which the respondent was liable. Those defences in summary were: that the appellant was not likely to suffer harm pursuant to s 13 of the Act; of truth pursuant to s 15 of the Act; of contextual truth pursuant to s 16 of the Act; and of qualified privilege at common law. His Honour rejected three of the defences. The first was clearly unarguable. The second failed because in his opinion the imputation was not true in substance, and the third, because the contextual imputations pleaded by the respondent were not made by the article in the bulletin, and furthermore, did not differ in substance from the appellant's imputation. His Honour did however uphold the defence of qualified privilege for the reasons that the article raised issues of general interest to persons operating in the field of occupational health and safety, that the imputation was within the privilege to which that interest gave rise, and that malice was not established. His Honour, conscious of the possibility of an appeal, said that he would have assessed damages if the defences had failed, in the sum of $25,000.

The appeal to the Court of Appeal of New South Wales

The appellant appealed to the Court of Appeal of New South Wales (Sheller and Hodgson JJA and Rolfe AJA). By majority (Rolfe AJA dissenting) that Court found that the inaccurate report of the decision on the original claim was protected because it was relevant to the occasion of qualified privilege. Their Honours also rejected the appellant's argument that a defence of qualified privilege can never attach to an inaccurate report of court proceedings of which this was said to be an example.

Hodgson JA (with whom Sheller JA and Rolfe AJA agreed on this point) held that the report of the decision on the cross-claim in the Federal Court proceedings was published on an occasion of qualified privilege. This was so because occupational health and safety were matters important for the common convenience and welfare of society, and communications relevant to them to persons responsible for occupational health and safety promoted those ends. As the respondent had accepted subscriptions for a newsletter dealing with occupational health and safety it was morally and legally obliged to publish to subscribers matters of significance on that topic within which the decision on the cross-claim fell.

Hodgson JA also held that unless malice were established, matter communicated on the privileged occasion enjoyed the privilege unless it was "truly unconnected with the subject matter of the occasion." His Honour further held that it was "germane and reasonably appropriate to the occasion to give readers the context of the proceedings in which the decision relevant to occupational health and safety was made" and that "the part of the publication complained about really [did] no more than ... indicate the nature of the proceedings and the result of the proceedings, so that the part of the judgment relevant to occupational health and safety [was] put in a context." In addition to agreeing with the decision and reasons of Hodgson JA, Sheller JA said that the matter complained of was "connected and sufficiently connected with the subject matter of the privileged occasion" and "relevant to the occasion" because the paragraphs complained of explained the context in which the copyright claim had been made as a response to an action brought against the claimant in the Federal Court proceedings. In dissenting, Rolfe AJA would have applied Bellino v Australian Broadcasting Corporation[276] to hold that the imputation found by the jury was not relevant to the privileged occasion: therefore the inaccurate attribution of the publisher was "truly unconnected with the subject matter of the occasion". It "intruded material into the article, which was not only wrong, but irrelevant to its essential thrust."

As to the appellant's argument that there could be no defence of qualified privilege for an inaccurate report of court proceedings, Hodgson JA said that the necessity for accuracy to sustain a defence of fair report of court proceedings was not an additional requirement superimposed over and above the defence of qualified privilege based upon a reciprocity of duty and interest.

Rolfe AJA would have upheld the appellant's submission in this respect. In his Honour's opinion, the requirement is that for qualified privilege to apply to reports of court proceedings, the reports must be accurate. His Honour thought a contrary conclusion to be "somewhat strange, particularly against the background of reciprocal rights and duties to receive and furnish information."

Having regard to the decision he had reached on the appellant's appeal, Hodgson JA did not need to deal with the Notice of Contention. He did, however, express two further opinions: first, that Davies AJ had not been in error in not finding that the appellant's imputation was true in substance. In his Honour's opinion:

"the indirectness of the involvement of the appellant's company in the publication, coupled with the reference to the appellant rather than his company, are sufficient in my opinion to prevent the imputation being true in substance."

Secondly, the respondent's defence of contextual truth could not succeed because, whether or not the contextual imputations were conveyed, they were considerably weaker than the appellant's imputation, and could not satisfy the condition for which s 16(2)(c) of the Act provides, that the appellant's imputation not further injure the appellant's reputation.

The appellant's appeal to this Court is brought on three grounds:

"(a) The Court of Appeal erred in finding that the Respondent was 'morally and legally obliged' and thereby had a duty to publish the matter complained of to the recipients and, thereby, finding that it was published on an occasion of qualified privilege at common law. > > (b) Hodgson JA (with whom Sheller JA agreed) erred in determining that that part of the matter complained of which defamed the [appellant] was relevant to the occasion of qualified privilege which he had found and in doing so misapplied the decision of this Court in Bellino v Australian Broadcasting Corporation[277]. > > (c) Hodgson JA (and Sheller JA) erred in determining that the defence of qualified privilege can ever extend to protect an inaccurate report of court proceedings."

In dealing with the appeal I proceed upon the basis that the article was factually wrong as found by the primary judge, and in my opinion correctly so, in referring to the appellant personally, and not to Consulting by its correct corporate name, and in describing the appellant personally as the, or a publisher of the newsletter the subject of the proceedings in the Federal Court.

The first question is whether a defence of qualified privilege is available in respect of the publication of an inaccurate or unfair report of judicial proceedings.

That a publication in New South Wales is of a report of court proceedings may not mean that its publisher is confined to the defence of a fair and accurate report of judicial proceedings if other defences are available at common law. Regard has to be had to s 11 of the Act which is in this form:

"Common law defence etc > > The provision of a defence by this Part does not of itself vitiate, diminish or abrogate any defence or exclusion of liability available apart from this Act."

For present purposes I will proceed upon the basis that a report of judicial proceedings may attract qualified privilege. It is another question however whether the fact that the publication does purport to be a report of judicial proceedings, would be irrelevant to a claim of qualified privilege in respect of it. It is unfortunate enough for the persons defamed that absolute privilege attaches to judicial, as well as parliamentary proceedings to deny them an effective remedy in defamation in respect of harsh and false things that may be uttered about them in court and Parliament. Any extension of such a licence, to defame, obviously needs to be carefully scrutinized. I must say that it does seem anomalous and productive of an incoherence in the law[278], that a report of judicial proceedings, however damaging to a person, may be protected as a fair and accurate report of judicial proceedings if, and only if it is fair and accurate[279], yet if it is inaccurate, or unfair, it might still attract qualified privilege. As will appear I do not have to resolve in this case the tension to which that anomaly gives rise or indeed, even to decide this first question, whether a separate defence of qualified privilege at common law can coexist with the statutory or common law defences of "fair report". But it is a matter which may need attention at some stage. There are two reasons why I do not have to do so. One is that, on the assumption that the relevant occasion was one of qualified privilege, all of the necessary elements of the defence of it are not present. The second reason is that, as McHugh J demonstrates in his judgment, the publication the true subject of these proceedings was not made on an occasion of qualified privilege. It is to the first of these matters that I will now turn.

Expressions which have the ring of slogans and metaphors have been repeatedly used in discussions of qualified privilege. It is important to examine those expressions to reduce them, as far as may be, to concrete terms. The starting point is that a defence of qualified privilege operates to excuse the publication of inaccurate or untrue and defamatory matter. But from the earliest times and subsequently according to various formulations, the protection which the law affords has always depended upon a number of matters: that the statement has been made in the discharge of some public or private duty, whether legal or moral, or in the conduct of the maker's own affairs and in which he or she has a real interest[280]. The formulation that qualified privilege will extend to a communication "fairly warranted by any reasonable occasion or exigency, and honestly made", such communication being "protected for the common convenience and welfare of society" was propounded in Toogood v Spyring[281] and later affirmed in Stuart v Bell[282]. Griffith CJ cited the formulation with approval in Howe & McColough v Lees[283]. The phrase "common convenience and welfare of society" rolls readily off the tongue as if it had a fixed meaning that no one could possibly dispute. The desirability of the advancement of the common convenience and welfare of society may readily be accepted. There are bound to be cases however in which what will advance the common convenience and the welfare of society are contestable concepts. Other expressions, such as "the general interest of society"[284] and "community of interest"[285] similarly involve the making of value judgments. It is because the making of any wrong statement cannot possibly be for the common, indeed any good, or in the public, or indeed any narrower interest, that the defence, once the occasion has been shown to be one of qualified privilege, focuses upon the subject matter of the communication, rather than upon the actual communication itself, the inaccuracy of which is the reason why there must be some other basis for its justification if its maker is to be protected against suit.

The authorities speak of public and private duties, legal or moral. In truth there are few matters of any kind which in ordinary affairs divorced from business or official functions, one person is under a legal duty to communicate to another or others. Almost all of the cases on qualified privilege are ones in which the publisher of the statement seeks to rely upon the existence of a moral duty, and necessarily so, because a legal duty is non-existent. And it is because of the premium which the law places on freedom of speech that the concept of a moral duty has been generously regarded, and allowed to be extended to large commercial publishers, that is to say publishers avid for profit. That is not to say of course that the intrusion of commerce should in any way be a disqualifying factor. The reality is that much which is informative and is in the interest of society to learn, would not be communicated at all if it could not be communicated for profit.

A further requirement for a defence of qualified privilege is an absence of malice. That is not a matter which need detain me here because it is not suggested that the relevant publication was published maliciously: the inaccuracies were not so gross that they could be said to have been made with such a degree of recklessness as could constitute malice.

Another requirement for the defence is "community of interest", an expression used by Griffith CJ in Howe & McColough v Lees[286], or, as I would prefer, and much other authority holds, "reciprocity of interest and duty". Just as the duty must be a duty to make a communication on, and in respect of a particular subject matter, the interest in receiving the communication must be reciprocal and relate to the particular subject matter.

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 connexion will not suffice. As North J said in Truth (NZ) Ltd v Holloway[287] in a passage cited with approval by Windeyer J in Australian Consolidated Press Ltd v Uren[288]:

"[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."

To a similar effect is the passage in the joint judgment of Dawson, McHugh and Gummow JJ in Bellino v Australian Broadcasting Corporation[289]:

"It is true that, at common law, privilege only attaches to those defamatory imputations that are relevant to the privileged occasion. Where a potentially privileged communication consists partly of matters relevant to the privilege and partly of matters that are not relevant, qualified privilege only attaches to that part which is relevant to the occasion. Moreover, the inclusion of the irrelevant part in the communication affords evidence of malice and can destroy the privilege attaching to the relevant part."

Again, what is or is not relevant or germane is not a matter upon which all minds will always agree. But because the communication of inaccurate matter can hardly be in the true interest of anyone, matters of the most attenuated relevance only to the subject matter, need to be carefully scrutinized and should be rejected as being outside the occasion of qualified privilege.

I turn now to the article containing the defamatory matter in which the imputation was made. It appears in a bulletin which on its masthead makes the claim "The Plain English Guide to Workplace Health & Safety". The headings to its various articles give the flavour of the publication. The first article is "Managers to be 'more accountable'". The next is "Dealing with mental abuse at work". The third has the heading "Call for City Link OH&S probe". The fourth article is headed "$350,000 for uninformed worker". The next heading is "Hire cars go smoke free". The sixth is "$6.8 million RSI payout overruled". The next is headed "'Enforced' rest breaks reduce RSI". The eighth has the heading "NT increases OH&S fines". The ninth is "New OH&S regulations for Tas". The tenth has the heading "Emergency management manual". The next is "Tractor safety campaign". The twelfth, with which this appeal is concerned, has the heading "MSDS copyright case dismissed". And the final article is headed "OH&S dates". Were it not for the twelfth article, the readers would be in no doubt that the exclusive concerns of the bulletin were occupational health and safety. He or she would also immediately assume that its readership consisted of people interested in, or directly involved in those disciplines.

This view would be confirmed by a statement at the end of the bulletin that it is published fortnightly and that "Special Reports are available at $395 for a [sic] 12 months with a 100% money back guarantee".

In my opinion the view of Rolfe AJA in dissent in the Court of Appeal should be preferred to the majority's. Everything which the readers had an interest in knowing and that the respondent had a moral duty to communicate to them consisted of the information about the publication and use of safety data sheets, matters truly of occupational health and safety. The import of the relevant orders of the Federal Court was that these should be, and were readily accessible, and that their republication was not a breach of copyright. The other issue in the proceedings in the Federal Court and the way in which it was resolved, were if at all, of only the most peripheral relevance to the accessibility, use and publication of the safety data sheets. As to those matters, the finding of false and misleading conduct, and its attribution to the appellant, were not germane or sufficiently related. Reference to the latter was not necessary for an understanding of the relevant matter, or in any way to put it in context.

I have so far approached this matter on the basis that the occasion was truly one of qualified privilege. It was not in fact, as McHugh J holds, such an occasion. Apart from emphasising that in my view carelessness to the point of recklessness may constitute evidence of malice, I agree with his Honour's reasoning and conclusion.

As neither party contended that the trial judge's provisional assessment of damages was inappropriate, I would allow the appeal with costs. The respondent should also pay the appellant's costs of the trial and the appeal to the Court of Appeal. Judgment should be entered for the appellant in the sum of $25,000.

[1] Acohs Pty Ltd v R A Bashford Consulting Pty Ltd (1997) 144 ALR 528 at 558.

[2] Bashford v Information Australia (Newsletters) Pty Ltd [2000] NSWSC 665 at [24] per Davies AJ and, on appeal, [2001] NSWCA 470 at [1] per Sheller JA, [32] per Hodgson JA, [54] per Rolfe AJA.

[4] [2001] NSWCA 470 at [2]- [4] per Sheller JA, [32]-[44] per Hodgson JA; cf [55]-[57] per Rolfe AJA.

[8] Toogood v Spyring [1834] EngR 363; (1834) 1 Cr M & R 181 [149 ER 1044]; Adam v Ward [1917] AC 309.

[9] (1834) 1 Cr M & R 181 at 193 [1834] EngR 363; [149 ER 1044 at 1049-1050].

At a glance

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Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; 218 CLR 366; 204 ALR 193; 78 ALJR 346 (11 February 2004)