Qualified privilege
111The principles that define the defence of qualified privilege have been the subject of much authority. The High Court, recently, had occasion, once more, to determine the issues. It said:
"[12] The defence of qualified privilege is based upon notions of public policy, that freedom of communication may in some circumstances assume more importance than an individual's right to the protection of his or her reputation. The question of whether the person making a defamatory statement was subject to some duty or was acting in the protection of some interest, in making the statement, is to be understood in this light.
[13] It was therefore encumbent [sic] upon Mrs Dillon to establish that she had a duty to convey the information about the rumour to Mr Croft. She gave evidence that she felt such an obligation, but of course this could not be determinative of the question for the trial judge, namely whether there was a duty of a kind which created the occasion to make the statement, in which case the privilege attached to it. That question fell to be determined by a consideration of the positions of Mr Croft and of Mrs Dillon within the CMA, the nature and importance of the matters conveyed and the relationship of the defamatory statement to those matters. Mrs Dillon's evidence as to the sense of obligation she felt, if accepted, may be relevant to the question of malice. It will be necessary to say something more about the two questions and the relationship between them.
[14] ... It may be seen from the passage from Toogood v Spyring above that the defence of qualified privilege is sufficient to overcome the law's presumption of malice (also referred to as 'implied malice'), a presumption which is based upon the making of a false and defamatory statement. The protection given by the privilege is, however, lost if the person making the statement did so for an improper motive. 'Express malice' is the term of art used to describe the motive of a person who uses a privileged occasion for some reason not referable to the duty or interest pursued. In the joint judgment in Roberts v Bass it was said that the privilege is qualified by the condition that the occasion must not be used for some purpose or motive which is foreign to the duty or interest which protects the making of the statement.
[15] ... A conclusion of express malice requires a finding that the maker of the statement was actuated by some improper purpose or motive, which is to say one not connected to the furtherance of the duty or interest so found. The nature and the extent of the duty or interest must be considered before the question of malice is addressed. In Roberts v Bass, Gleeson CJ observed that the 'kind of malice that defeats a defence of qualified privilege at common law is bound up with the nature of the occasion that gives rise to the privilege.'" ( Cush v Dillon; Boland v Dillon [2011] HCA 30; (2011) 85 ALJR 865 at 868-869, per French CJ, Crennan and Kiefel JJ.)
112Dillon, supra, is the latest in a series of cases in which qualified privilege has been a matter of controversy: see Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; (2004) 218 CLR 366; Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1; Aktas v Westpac Banking Corporation Limited [2010] HCA 25; (2010) 241 CLR 79. The controversy was largely evidenced in intermediate courts of appeal and before trial judges: see, for example, Holmes a Court v Papaconstuntinos [2011] NSWCA 59; Bennette v Cohen [2009] NSWCA 60; Goyan v Motyka [2008] NSWCA 28. At trial level, the controversy has been slightly different, albeit without the benefit of the statement of principle in Dillon; see Cush v Dillon and Boland v Dillon [2009] NSWDC 21; Papaconstuntinos v Holmes a Court [2009] NSWSC 903; Brett HOLMES v Andrew FRASER [2008] NSWSC 570; Megna v Marshall [2010] NSWSC 686; Manefield v Child Care NSW [2010] NSWSC 1420; and Haddon, supra.
113The principles to be applied have, as is obvious from the citation of Dillon, above, been clarified:
(i) Qualified privilege is based upon public policy, namely, in certain circumstances freedom of communication is a more important aspect of democratic government than an individual's right to protection of his or her reputation: Dillon, supra, at [12];
(ii) It is first necessary for a trial judge to determine whether there was a duty of a kind which created the occasion to make the statement to which qualified privilege attaches: Dillon, supra, at [13];
(iii) The determination of whether the occasion arose to which qualified privilege attaches is determined by consideration of the nature and importance of the matters conveyed, the relationship of the defamatory statement to those matters and the relationship between the maker of the statement and the person to whom the statement is made: Dillon, supra, at [13];
(iv) The relationship between the maker and receiver of the statement is a requirement of a reciprocity of duty or interest necessary to attract the defence of qualified privilege, meaning, that the maker of the statement has a duty or interest in making it and the receiver of the statement has a duty or interest in receiving it: Dillon, supra, at [12], [13], [32], [54]; Bashford, supra, at [9], [10], [137]; Aktas, supra, at [22], [41];
(v) Qualified privilege, if it were to exist, is defeated by an improper motive, otherwise termed "express malice", being a reason for the making of a statement not referable to the duty or interest pursued: Dillon, supra, at [14], [29];
(vi) Qualified privilege is also lost for so much of the statement that is not relevant and pertinent to the discharge of the duty or the safeguarding of the interest: Dillon, supra, at [19];
(vii) While knowledge that a statement is untrue may be evidence of malice, neither lack of belief in the truth of the statement nor objective falsity of the statement is sufficient to destroy qualified privilege: Dillon, supra, at [28], [29].
114As was pointed out by the High Court in Bashford, supra, at [10], stating the principles at a high level of abstraction does not ease the difficulty in the application of the principles. Fundamentally, the controversies that have existed at trial level relate to the determination of whether there is a reciprocity of interest (assuming the trial judge has embarked upon that process), whether the motive for the making of the statement is an improper one and whether something said in the statement is irrelevant to the reciprocal duty to publish and receive the statement.
115While analysis by analogy is problematic and the issues are never exactly the same, there is significant discussion on the difference between an interest relating to particular matters and a high level of abstraction, under the rubric of "public interest", as part of the requirements of fair comment under the former common law principles and under the Queensland Code. At one level, the highest level of abstraction, almost all issues could be pertinent and/or relevant to an interest in making and receiving a publication.
116Thus, at the highest levels of abstraction, in a democracy such as Australia, it may be said that every citizen has a duty or interest in open government or government that is not corrupt and almost every other citizen has a duty or an interest to convey matters that impede open government or the discovery of corruption. As a consequence, any allegation of conduct by an official that impedes open government and encourages corruption or facilitates it would be subject to qualified privilege. That qualified privilege would remain even though the imputations and/or allegations were untrue.
117In discussing "public interest", in the context just described, the High Court said:
"At common law, it would be meaningless to speak of a fair comment on 'organised crime and corruption in Queensland' or a fair comment on 'the existence of illegal activities' or a fair comment on 'trafficking in illegal drugs' without the comment referring, expressly or impliedly, to the conduct of individuals whose office or public activities invited public criticism and discussion. Thus, a comment on the conduct of a private individual who had secretly engaged in organised crime could not be justified at common law as a fair comment on a subject of public interest, no matter for how long or how heavily he or she had been engaged in organised crime. It is the failure to grasp this point that has led to the view that 'some subject of public interest' ... includes general abstractions unrelated to the conduct of particular individuals." ( Bellino v Australian Broadcasting Corporation [1996] HCA 47; (1996) 185 CLR 183, footnote 115, per Dawson, McHugh and Gummow JJ.)
118Of course, the issue with which the Court is concerned when dealing with qualified privilege is very different from the question of "public interest" to which the High Court was referring in Bellino, supra. Nevertheless, the difficulties associated with general abstractions are as acute. The difficulty, however, is overcome when one combines the considerations of the matters conveyed and the relationship of the defamatory statement to those matters, with the relationship between the maker of the statement and the person to whom the statement is made (see 113 above).
119There is a requirement that there be a relationship between the maker of the statement and the person to whom the statement is made such that the matters conveyed (including the defamatory statement) give rise to a duty or interest to make the statement and a duty or interest to receive it.
120Thus, in Aktas, supra, the bank's interest to communicate the information arose from its desire to refuse to pay on the cheque that had been presented. But the person who received the information had no interest in receiving it, unless, as a matter of objective fact, the drawer of the cheque had insufficient funds to meet its payment. Therefore, where the notice to dishonour a cheque from a bank inaccurately asserts that the drawer does not have funds to meet the payment, it is a defamation not protected by qualified privilege: Aktas, supra, at [41], per French CJ, Gummow and Hayne JJ.
121In Dillon, supra, on the other hand, both the maker of the communication and the receiver of it had an interest and/or duty, respectively, to make and to receive. Even if the material be defamatory (by which term I here mean untrue and damaging of reputation), it is necessary for the person in the position of the receiver of the communication, in the Dillon situation, to be armed with the material necessary to investigate the allegation and/or to make decisions based on possible repercussions. The existing relationship between the maker and receiver of the communication in Dillon, supra, was such that, even though untrue, there was an interest to make and receive the allegation.
122A difficulty, relevant to present circumstances, is exemplified by the judgment in Guise v Kouvelis [1947] HCA 13; (1947) 74 CLR 102. That case concerned a statement, by a member and committeeperson of a club, who remarked, in a loud voice, audible to 50 or 60 people, both members and non-members of the club, to a person playing cards: "You are a crook". The High Court (Latham CJ, Starke, McTiernan and Williams JJ) held that the words or statement about which complaint was made were not spoken on a privileged occasion and did not give rise to qualified privilege. The dissenting judgment of Dixon J is illustrative of the different views that persons may have of the reciprocity of interest and/or duty.
123Latham CJ accepted that the other members of the club had an interest in receiving the information, because it affected their capacity to involve themselves in an exchange and play cards with the plaintiff. However, Latham CJ held that the defendant was not defending or protecting his own interests or his interests as a member of the club. Protection of those interests, according to his Honour, did not require any statement about the plaintiff to any other person.
124Latham CJ went on to say that the defendant could have told the plaintiff that he was reporting his conduct to the committee and a communication with the committee would have been the subject of qualified privilege.
125Starke J took the view that the defendant had no legal duty to make the statement and the 50 or 60 persons who heard it had no duty to receive it. Both McTiernan and Williams JJ agreed with the Chief Justice.
126Dixon J concentrated on the interest of the maker of the statement, from a social or moral point of view, to make the communication and dismissed as currently irrelevant, the interest of others present in receiving the communication. His Honour concluded that the defendant's purpose was not primarily to communicate information to the bystanders, but to demand from the plaintiff a justification for what he had done and perhaps to expose him.
127The fundamental difference in this case is manifest. Mr Sinclair had an interest in ensuring his access to higher grades of certification in order to officiate at dragon boat racing events. It was therefore in his interest to communicate issues that he considered were prejudicially affecting his access to such higher grades.
128Some of the recipients of his email plainly had a corresponding interest and/or duty to receive the communication. Certainly, the members of the committee of either DBNSW or AusDBF had such an interest or duty. As a consequence, the communication by Mr Sinclair to the members of the committee of AusDBF and/or DBNSW was a communication on an occasion of qualified privilege.
129Further, it would seem, given the context of the communication and the interest in officiating at international events, that the officials of the IDBF also had a corresponding interest and/or duty to receive the communication.
130The difficulty arises in determining who, if anyone, other than the aforementioned, had a corresponding interest or duty to receive the communication.
131Unlike Guise, supra, this was not a communication to Ms Cantwell, which others overheard. Nor was it a communication to those with an interest, which others overheard. This communication was deliberately addressed to persons beyond the class of members of the committee and/or officials of the three aforementioned bodies.
132One of the addressees was a "Yahoo" group which contained 173 members, all of whom were involved in dragon boat racing, but beyond that description, Mr Sinclair was unaware of who they were, the interests they had, and/or any positions they held within the dragon boat racing community.
133Other than the bare interests associated with some form of connection to or participation in dragon boat racing, Mr Sinclair could not have been aware of the interests of the persons to whom his emails were sent to receive the information in them.
134Although there is, at least by implication, some suggestion that at one regatta there was a degree of incompetence and/or inappropriate officiating, there is no suggestion that a participant in dragon boat racing, who is not concerned to officiate and/or increase certification levels, is affected, prejudicially or otherwise, by the failure of Mr Sinclair to obtain higher levels of certification. Nor is there any indication that such persons are affected, or have an interest in, the availability of certification to all dragon boat community members.
135It follows, from the foregoing, that the communication from Mr Sinclair to the members of the committee and/or officials of the IDBF, AusDBF and DBNSW was on an occasion of qualified privilege. The communication to other members of the dragon boat racing community was not on an occasion of qualified privilege.
136Unlike a newspaper article, or a public broadcast or even an accusation shouted out in the precincts of a club (see Guise, supra), Mr Sinclair chose the recipients of his two emails. Mr Sinclair had deliberately selected recipients beyond the members of the committee and/or officials of IDBF, AusDBF and DBNSW. The communication with those persons, beyond the committee members and officials, is not a communication on an occasion of qualified privilege.
137The defendant submits that the emails are directed towards the affairs of dragon boat racing in Australia. This is a generalisation, which goes beyond the purpose of the emails. The emails are directed towards selection for officiating and the certification of officials in dragon boat racing.
138Further, the defendant's submissions that the emails concern "putting members forward for assessment by the international body" is accurate only to the extent that it must be understood as referring to members, seeking certification as officials, for assessment at a particular level of official. As such, the subject matter of the emails does not have "equal application to all members throughout all clubs, wherever they are in Australia".
139A further submission is put by the defendant that the matter could be the subject of discussion at an annual general meeting. This may be so. If it were so, it could be the subject of discussion, on the basis of qualified privilege, because, on the occasion of its discussion (namely an annual general meeting), the attendees would have a sufficient interest in dealing with the matters on the agenda, which, on that hypothetical, would include the question of the certification of officials.
140The defendant submits that it is impermissible to draw a distinction between ordinary paddlers (members of the dragon boat racing community) and members of the governing bodies for reasons analogous to the rationale adopted by Simpson J in Megna, supra. In Megna, supra, repetitive publications concerning local council affairs were distributed to all homes in a municipality. The difference, however, is that the distribution in Megna, supra, was a distribution that was not intended or directed at non-residents. In this case, the publication by Mr Sinclair was directed at non-officials and non-members of the committee.
141Alternatively, and it is a matter upon which reasonable people may differ, all members of the dragon boat racing community had an interest in ensuring that each of them and all of them had the greatest opportunity to further any interest they may have in acting as an official at the highest level. Further, on that view, each participant in dragon boat racing also had an interest to ensure that there were sufficient numbers of competent officials for races that were conducted and that officials were chosen on the basis of merit, rather than "nepotism" (using the term broadly as it has been in the pleadings).
142As stated, the existence or otherwise of an occasion for qualified privilege is a matter, in relation to the members of the dragon boat racing community other than officials and board members, upon which reasonable people may differ. I incline to the view that, in all of the circumstances, the former expressed view is the correct one and that the emails in question were, insofar as they were sent to members of the dragon boat racing community other than committee members and officials, not communicated on an occasion of qualified privilege. Nevertheless, I will deal with each possibility, concentrating on a broader view of qualified privilege, namely, that each addressee had the requisite interest to receive the communication.