Discussion and resolution - qualified privilege at common law
67We do not consider that there is any occasion in this judgment to repeat the origins and history of the common law treatment of qualified privilege in the law of defamation. Recent decisions of this Court are replete with statements of the relevant principles: Moit v Bristow at [73]-[79] per McColl JA with whom Beazley and Campbell JJA agreed; Lindholdt v Hyer [2008] NSWCA 264; 251 ALR 514 per McColl JA at [69]-[81]; Aktas v Westpac Banking Corp Ltd per McClellan CJ at CL with whom Ipp and Basten JJA agreed; and, most recently, Korean Times Pty Ltd v Pak [2011] NSWCA 365 per Nicholas J, with whom Beazley and Basten JJA agreed. Moreover, the primary judge, in a thorough judgment, gave great attention to the statement of those relevant principles and the citation of the relevant authorities which established them.
68It is sufficient, in our view, that brief reference be made first to the statements of principle appearing in Bashford v Information Australia. The principles are stated by the plurality (Gleeson CJ, Hayne and Heydon JJ) at [9]-[10]:
"[9] The principles to be applied in determining whether the occasion of publication of matter about which complaint is made was an occasion of qualified privilege are well known. The authorities that state those principles are equally well known. Frequent reference is made to the statement of Parke B in Toogood v Spyring:
'In general, an action lies for the malicious publication of statements which are false in fact, and injurious to the character of another (within the well-known limits as to verbal slander), and the law considers such publication as malicious, unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. In such cases, the occasion prevents the inference of malice, which the law draws from unauthorized communications, and affords a qualified defence depending upon the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits.'
Reciprocity of duty or interest is essential.
[10] These principles are stated at a very high level of abstraction and generality. 'The difficulty lies in applying the law to the circumstances of the particular case under consideration'. Concepts which are expressed as 'public or private duty, whether legal or moral' and 'the common convenience and welfare of society' are evidently difficult of application. When it is recognised, as it must be, that 'the circumstances that constitute a privileged occasion can themselves never be catalogued and rendered exact', it is clear that in order to apply the principles, a court must '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'."
69It is advantageous to refer, in addition, to the remarks of Gummow J who agreed with the plurality that the appeal should be dismissed. In particular, his Honour said at [148]:
"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:
'[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:
'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'."
See also Cush v Dillon [2011] HCA 30; 243 CLR 298 at [11]-[15] per French CJ, Crennan and Kiefel JJ.
70To these statements we would add the observations of the plurality (French CJ, Gummow and Hayne JJ) in Aktas v Westpac Banking Corporation at [14]:
"As a general proposition, the common law protects the publication of defamatory matter made on an occasion where one person has a duty or interest to make the publication and the recipient has a corresponding duty or interest to receive it; but the privilege depends upon the absence of malice. The requirement of reciprocity of interest generally denies the common law privilege where the matter has been disseminated to the public at large."
71We turn then to apply these principles to the first argument advanced on behalf of the appellants, namely, that dealing with qualified privilege at common law. There are two aspects to this argument. The first focuses on the argument principally advanced at trial. The second focuses on a somewhat revised argument advanced by Mr Reynolds on the appeal, albeit related to an alternative position taken at trial.
72The case the appellants principally sought to make at trial, and on the leave application to this Court, recognised the difficulty arising from the fact that the newspaper had a very substantial readership. Indeed, slightly more than 10% of its readers - 1,040 persons - came from outside the Clarence Valley. It was, having regard to the authorities to which reference has been made, extremely difficult for the newspaper to make out an occasion of qualified privilege in those circumstances. Nevertheless, it sought to do so by arguing that a reciprocal duty and/or interest could be demonstrated by confining the recipients relevantly to the fourteen or so individuals identified by Ms Mundine's evidence. Each of those persons, it was argued, had a specific interest by virtue of his or her connections with the AMS and its functions in being informed about "the inadequacies in Aboriginal service delivery to Aboriginals in the Clarence Valley region": appellants' written submissions at trial.
73We consider that there is a clear answer to this submission. It derives from the fact, already adverted to, that the publication to more than eleven thousand persons meant that the appellants could not identify who - beyond the fourteen specified persons - the recipients of the article were who may have known Ms Mundine and her occupation, and how there could be said to arise in them a "special and reciprocal" interest: Andreyevich v Kosovich (1947) 47 SR(NSW) 357 at 363; Bashford v Information Australia per Gummow J at [140]. Moreover, the evidence that those fourteen persons could identify Ms Mundine from the article was adduced in her case to show that, though she was not named in the article, it was "of and concerning" her. It was not evidence to establish a special or reciprocal interest on their part, although undoubtedly it could be relied on by the appellants, if sufficient, for that purpose.
74In any event, in our opinion it is clear that, as the primary judge found, the appellants' submission that the article was published to a confined group cannot be sustained. It is clear that there were many more people in the community - both Aboriginal and non-Aboriginal - who were likely to have identified Ms Mundine as the (or a) person referred to in the article. Such people, it might also be inferred, while knowing Ms Mundine, had no reciprocal interest in the relevant sense at all. Thus the appellants, on whom the onus of establishing their qualified privileges defences lay, could not and did not show that such persons, or any of them, had the relevant interest.
75Ms Mundine had held her position in Grafton for some seven years at the time of the publication of the article. Unquestionably, she would have been known to many people in the local community as a mental health worker who had been employed during those years by the AMS. The community's knowledge of her in this regard would have extended well beyond the persons who worked with her as fellow employees or those who had been directly the recipients of her services as an employee of AMS. The primary judge recognised this situation when he said:
"[27] Ms Mundine purchased her newspaper on 18 August 2008 from the newsagent or outlet as she regularly did. I have no way of knowing on the state of the evidence whether the person with whom she dealt on those occasions knew her as an Aboriginal mental health worker in the local area. The same could be said for the teller at her bank or the mechanic who serviced her car. It is probable that Ms Mundine had friends and relatives who also knew that she worked for the Aboriginal Medical Service as a mental health worker. Such people may have been large or small in number. The evidence does not permit me to say.
[28] For presently relevant purposes it seems to me that the defendants would have to prove that there were no such people, beyond the limited group or class described, to whom their defamatory imputation was published in the way they suggest. They understandably did not attempt to do so by direct evidence, preferring instead to rely upon the availability of an inference that there were no such people. I am not satisfied that such an inference is available.
[29] In my opinion, the defendants published the matter complained of and the defamatory imputation that Ms Mundine as a mental health worker is incompetent to the whole of its readership. The matter was disseminated to the public at large. Any assessment of whether or not the defendants can maintain the defence of common law qualified privilege must be assessed in that context."
In our view the inference the primary judge drew at [28] was well open to him: Warren v Coombes [1979] HCA 9; 142 CLR 531.
76We do not accept, as the newspaper argued in its written submissions, that his Honour's findings contravened the principle that in an identification case publication takes place to a "necessarily limited number of readers": Rogers v Nationwide News at 354. To the contrary, we consider that his findings recognised that this was so. However, his Honour correctly reasoned that the number of readers who may identify a person who was not named in an article will often extend well beyond those persons who work or reside with that person.
77Insofar as the appellants' first argument appears to accept that publication went beyond the group of fourteen persons, so that they focused on the point that publication to "incidental" recipients did not destroy the defence of qualified privilege, we do not consider that this advances the newspaper's position. The article was published to the general community, amongst which there was an indeterminate number of people who had the knowledge that allowed them to identify Ms Mundine as being referred to therein. Merely because some of those persons had an interest that may have attracted qualified privilege did not mean that publication to the others was "incidental". Moreover, as Ms Mundine submitted, this was not a situation where communication to the limited group identified by the appellants to attract qualified privilege could not have been achieved by other means. An obvious illustration is that a letter could have been sent by Mr Brown to the AMS itself. The situation mentioned by McHugh J in Stephens at 263 simply did not arise. We therefore consider that the first aspect of the appellants' argument directed to qualified privilege has no merit.
78It is plain that Mr Reynolds recognised the difficulty confronting the appellants' approach to qualified privilege at the trial. Simply stated, they failed to establish reciprocity of duty and interest to the wider community or to those members of the community who, apart from fellow workers, family and friends, would have recognised Ms Mundine as a person whose competence was challenged in the article.
79Mr Reynolds' first response to this difficulty was to turn the principal argument advanced at the trial on its head. It had been argued at trial, alternatively to the "confined class" proposition with which we have dealt, that there was a reciprocity of duty and interest even if the publication was regarded as having been made to the general readership of the newspaper: see primary judgment at [75]-[79]. That argument had been advanced on the basis of Smithers J's judgment in Australian Broadcasting Corporation v Comalco Ltd.
80However, on the appeal Mr Reynolds argued that McHugh J's statement in Stephens (at 265) ushered in a new approach. His Honour said:
"Accordingly, it is now appropriate for the common law to declare that it is for 'the common convenience and welfare'' of Australian society that the existing categories of qualified privilege be extended to protect communications made to the general public by persons with special knowledge concerning the exercise of public functions or powers or the performance of their duties by public representatives or officials invested with those functions and powers. ... If such persons, acting honestly, inform the general public of what they know about such matters, their publications will be made on an occasion of qualified privilege. The defence of qualified privilege will be available even if the information is subsequently proved to be incorrect. Thus, the occasion will still be privileged even if the 'whistleblower'' mistakenly but honestly publishes information which defames another person or the scientist or journalist honestly overlooks some fact which undermines the thesis of his or her claim. The publication of erroneous information may be evidence of malice in some cases. But by itself an error in the published information will not destroy the occasion of privilege.
... speaking generally, the occasion will be privileged whenever a person with the requisite special knowledge honestly publishes information about the functions or powers or the performance of duties by public representatives or officials for the purpose of informing the public about such matters."
81Stephens involved a defamation action pending in the Supreme Court of Western Australia which had been removed into the High Court pursuant to the provisions of the Judiciary Act 1903 (Cth). The respondents were all members of the Legislative Council of Western Australia. The appellant newspaper published three articles reporting statements made by another member of Parliament to the effect that the respondents had been involved in "a junket of mammoth proportions". The case stated asked, inter alia, whether the newspaper articles were published "on occasions of qualified privilege".
82The decision in Stephens was delivered contemporaneously with the Court's judgment in Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; 182 CLR 104. The principal matter considered in both decisions was the availability of the implied freedom of political communication in the Commonwealth Constitution. This had been the subject of a pleaded defence in both matters, as was the defence of common law qualified privilege. On the principal question, it was held by the majority (Mason CJ, Deane, Toohey and Gaudron JJ), that there was implied in the Constitution a freedom to publish material discussing Government political matters, and material of and concerning members of the Parliament of the Commonwealth relating to the performance of their duties as such. Brennan, Dawson and McHugh JJ dissented on this principal point.
83In Stephens, on the issue of the defence of qualified privilege, Mason CJ, Deane, Toohey and Gaudron JJ held that the defence was good in law. However, again, in separate decisions, each of Brennan, Dawson and McHugh JJ also dissented on this second point.
84In discussing the common law of qualified privilege, McHugh J introduced the topic in these terms (at 260):
"At common law, it is a defence to the publication of defamatory matter that the matter was published in good faith on an occasion of qualified privilege. Statements 'fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned' are privileged even though they contain untrue defamatory statements (Toogood v Spyring [1834] 1 C.M.&R. 181 at 193; 149 ER 2044, at pp 1049-1050). However, the defence of qualified privilege is generally not available where defamatory matter is published in a newspaper. At common law, the defence is not open unless the recipient of the publication possessed an interest in receiving or was under a duty to receive the communication that corresponded with the interest or duty of the person making the publication.
...
Reciprocity of interest or duty is essential to a claim of qualified privilege at common law (Adam v Ward [1917] AC 309 at 334). The need for reciprocity usually defeats a claim of qualified privilege where the publication has been made to the general public. Only in exceptional cases does a person have an interest or duty to publish defamatory matter to the world at large. Both in Australia and elsewhere, common law courts have repeatedly held that a person has no legitimate interest or duty to publish defamatory matter to the general public if no more is established than that the subject matter of the publication is one in which the public is interested (Loveday v Sun Newspapers Ltd (1938) 59 CLR 503; Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 778; Nationwide New Pty Ltd v Wiese (1990) 4 WAR 263 at 267)."
85McHugh J recognised that there are some occasions where circumstances may make the interest of the general public in a particular subject sufficient to allow the availability of a defence of qualified privilege. His Honour instanced two examples where publications were made in reply to attacks on the respondent or some other person which had been published to the world at large. There were several other instances cited by his Honour to demonstrate that the proprietor of a newspaper was in some circumstances entitled to a defence of qualified privilege when it had published statements made by a third person pursuant to or in discharge of that person's interest or duty to inform the general public about a matter. It was in that context that his Honour said (at 263) that in determining whether a person has an appropriate or sufficient interest or duty to publish to the world at large, the extent of the publication and the proportion of readers who have a legitimate interest in receiving the communication were relevant matters to be weighed in the balance.
86McHugh J then observed (at 263-264):
"Although, as the foregoing account of the case law demonstrates, the common law has upheld defences of qualified privilege for publications to the world at large, common law courts have taken a restricted view of the occasions when a person has an interest or duty to publish material to the general public. Protection of reputation has generally been preferred to the right of the public to know. It is not surprising that successive generations of common law judges have been loath to extend the categories of qualified privilege to protect publications in the general media."
87It was at this point of his judgment that McHugh J introduced the topic which led him to make the remarks upon which reliance has been placed by the appellants in the present matter. In the paragraph preceding those remarks (at 264), McHugh J said:
"In the last decade of the twentieth century, the quality of life and the freedom of the ordinary individual in Australia are highly dependent on the exercise of functions and powers vested in public representatives and officials by a vast legal and bureaucratic apparatus funded by public moneys. How, when, why and where those functions and powers are or are not exercised are matters that are of real and legitimate interest to every member of the community. ... It follows in my opinion that the general public has a legitimate interest in receiving information concerning matters relevant to the exercise of public functions and powers vested in public representatives and officials. ... If this legitimate interest of the public is to be properly served, it must also follow that on occasions persons with special knowledge concerning the exercise of public functions or powers or the performance by public representatives or officials of their duties will have a corresponding duty or interest to communicate information concerning such functions, powers and performances to members of the general public."
88It was in this context that his Honour considered (at 265) it appropriate for
"... the common law to declare that the existing categories of qualified privilege be extended to protect communications made to the general public by persons with special knowledge concerning the exercise of public functions or powers or the performance of their duties by public representatives or officials invested with those function and powers."
89It is necessary to add that McHugh J eventually decided that the pleadings in Stephens revealed that the material which was capable of being defamatory of the respondents was essentially comment. As such, it did not attract the protection of the doctrine of qualified privilege. For this reason, McHugh J thought that the defence pleaded by the newspaper in that case was bad in law.
90It can be seen from this examination of the full context of McHugh J's remarks that the situation with which his Honour was directly concerned related to published criticism of elected members of Parliament. Further, his Honour's general statement at 265 arose in the broader context of his reluctance to accede to the majority's position on the issue of the implied freedom of political communication in the Constitution.
91As we have said, Mr Reynolds argued that McHugh J's remarks in Stephens ushered in a new approach. Alternatively, he argued that his Honour's remarks were, in any event, a repetition of the accepted law in relation to discerning an occasion of qualified privilege.
92The arguments advanced seized upon - indeed, relied upon - the wider publication of the article to the general community of the Clarence Valley area. This broad body of persons, Mr Reynolds submitted, had an interest in matters relating to the exercise by the AMS and its employees of their functions in supplying mental health services to the local Aboriginal community. Mr Brown had special knowledge of matters relating to the crisis in mental health among Aboriginals in the area and thereby had a duty to publish the defamatory matter to the general public. The newspaper had an ancillary privilege to do the same, particularly having regard to its role as the principal newspaper in the local area.
93In so far as Mr Reynolds sought to place reliance upon McHugh J's remarks in Stephens, five responses may be made. First, the submission, as we have said, takes his Honour's remarks somewhat out of context. Secondly, and importantly, to the extent that McHugh J may be said to have been suggesting a general extension to common law privilege, this was not adopted by any of the other Justices in Stephens, and has not been adopted in any decision of the High Court since Stephens. Thirdly, as we discuss below, it was positively curtailed in Lange v Australian Broadcasting Corporation. Fourthly, as McHugh J's dicta has not commanded majority of the High Court, this Court is not bound to apply it: Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89 at [134]. Fifthly, read in context, McHugh J's remarks arguably had no application to the position held by Ms Mundine in any event. She was an employee of non-government nonprofit organisation.
94It is convenient at this point to proceed directly to the decision of the High Court in Lange.
95The decision in Lange brought into sharp focus the previous division of the High Court in relation to the question as to whether there was an implied Constitutional freedom of political communication which itself imposed a limit on the law of defamation. In Stephens, at 259, McHugh J repeated the view he had stated in Theophanous (see [ REF _Ref327972792 \r \h 84]-[ REF _Ref327972801 \r \h 88] above) and, accordingly, concluded that the Constitution contained no guarantee of freedom of expression that would render the appellant immune from an action for defamation.
96In Lange, those members of the Court who had favoured both a Constitutional immunity and an expansion of the existing common law defence united in support of the latter approach: see Korean Times Pty Ltd v Pak at [29] per Basten JA. The Court declared unanimously that common law qualified privilege extended to communications made to the public on government or political matters, subject to the requirement that the conduct of the publisher was reasonable. It said, at 571:
"Accordingly, this court should now declare that each member of the Australian community has an interest in disseminating and receiving information, opinions and arguments concerning government and political matters that affect the people of Australia. The duty to disseminate such information is simply the correlative of the interest in receiving it. The common convenience and welfare of Australian society are advanced by discussion - the giving and receiving of information - about government and political matters. The interest that each member of the Australian community has in such a discussion extends the categories of qualified privilege. Consequently, those categories now must be recognised as protecting a communication made to the public on a government or political matter."
And at 572:
"But, apart from a few exceptional cases, the common law categories of qualified privilege protect only occasions where defamatory matter is published to a limited number of recipients. If a publication is made to a large audience, a claim of qualified privilege at common law is rejected unless, exceptionally, the members of the audience all have an interest in knowing the truth. Publication beyond what was reasonably sufficient for the occasion of qualified privilege is unprotected. Because privileged occasions are ordinarily occasions of limited publication - more often than not occasions of publication to a single person - the common law has seen honesty of purpose in the publisher as the appropriate protection for individual reputation. As long as the publisher honestly and without malice uses the occasion for the purpose for which it is given, that person escapes liability even though the publication is false and defamatory. But a test devised for situations where usually only one person receives the publication is unlikely to be appropriate when the publication is to tens of thousands, or more, of readers, listeners or viewers."
And at 573:
"Given these considerations and given, also, that the requirement of honesty of purpose was developed in relation to more limited publications, reasonableness of conduct seems the appropriate criterion to apply when the occasion of the publication of defamatory matter is said to be an occasion of qualified privilege solely by reason of the relevance of the matter published to the discussion of government or political matters. But reasonableness of conduct is imported as an element only when the extended category of qualified privilege is invoked to protect a publication that would otherwise be held to have been made to too wide an audience. For example, reasonableness of conduct is not an element of that qualified privilege which protects a member of the public who makes a complaint to a minister concerning the administration of his or her department. Reasonableness of conduct is an element for the judge to consider only when a publication concerning a government or political matter is made in circumstances that, under the English common law, would have failed to attract a defence of qualified privilege."
97The development was explained in Roberts v Bass [2002] HCA 57; 212 CLR 1, by Hayne J:
"[222] ... Lange held that communications of political matter to audiences in circumstances which would not fall within that earlier understanding of an occasion of qualified privilege could be privileged, but only if a different test was met. Lange did not hold that any different test was to be applied if the publication did fall within that earlier understanding of an occasion of qualified privilege.
[223] It is important to notice that the decision in Lange proceeded from two premises, first, that each member of the Australian community has an interest in disseminating and receiving information, opinion and arguments concerning government and political matters that affect the people of Australia but, second, that this interest did not suffice to found a claim to qualified privilege according to then understood principles. The interest which was identified was not restricted to the interest of electors or of federal electors in matters of federal politics."
98Prior to stating its conclusions, the High Court in Lange prefaced its discussion by reference to both Theophanous and Stephens. It said, at 569:
"Theophanous and Stephens decided that in particular respects the law of defamation throughout Australia was incompatible with the requirement of freedom of communication imposed by the Constitution. However, those cases did so without expressly determining whether the law of defamation in its common law and statutory emanations has developed to the point that it is reasonably appropriate and adapted to achieving a legitimate end that is compatible with the system of government prescribed by the Constitution. Because that is so, those cases ought not to be treated as conclusively determining that question, which should be examined afresh."
99Their Honours commenced the examination "afresh" at 570:
"The basis of this common law rule is that reciprocity of interest or duty is essential to a claim of qualified privilege at common law. Only in exceptional cases has the common law recognised an interest or duty to publish defamatory matter to the general public. However, the common law doctrine as expounded in Australia must now be seen as imposing an unreasonable restraint on that freedom of communication, especially communication concerning government and political matters, which 'the common convenience and welfare of society' now requires. Equally, the system of government prescribed by the Constitution would be impaired if a wider freedom for members of the public to give and to receive information concerning government and political matters were not recognised."
100The Court then referred to the passage from McHugh J's judgment in Stephens (at 264) which we have set out above at [ REF _Ref327972849 \r \h 87]. The Court continued at 571:
"Because the Constitution requires 'the people' to be able to communicate with each other with respect to matters that could affect their choice in federal elections or constitutional referenda or that could throw light on the performance of ministers of State and the conduct of the executive branch of government, the common law rules concerning privileged communications, as understood before the decision in Theophanous, had reached the point where they failed to meet that requirement. However, the common law of defamation can and ought to be developed to take into account the varied conditions to which McHugh J referred. The common law rules of qualified privilege will then properly reflect the requirements of ss 7, 24, 64, 128 and related sections of the Constitution."
101It can be clearly seen that, far from adopting the broad approach suggested by McHugh J in Stephens (at 265), the High Court restricted it to the single extension to qualified privilege concerning communications on political matters. The force of McHugh J's remarks was acknowledged by an extension of the common law defence to cover publications in that one area, but not beyond it.
102The result of this uncontroversial analysis is that we must deal with the appellants' present submissions on the basis of the well understood and frequently stated principles of common law qualified privilege, except as extended by Lange. We have briefly stated those general principles in dealing with the first aspect of Mr Reynolds' arguments. It is clear, of course, that the Lange extension has no part to play in the resolution of the present matter. Neither Ms Reynolds nor Ms Wass suggested that it did. But we have referred to it in order to emphasise the reasons why we reject the appellants' reliance on McHugh J's approach in Stephens.
103The focus then becomes whether Mr Brown and the newspaper had a duty or interest to publish the matter complained of, and whether the community at large in the Clarence Valley (and those 1,000 or so readers beyond) had a reciprocal duty or interest to receive it.
104In Stephens, Brennan J explained the basis for the limited availability of the defence of common law qualified privilege to the publication of a newspaper. He said, at 242:
"In principle, the defence of qualified privilege is available to a newspaper defendant as it is to any other defendant who publishes defamatory matter. But a newspaper defendant is often unable to satisfy the requirements or elements of the defence of qualified privilege. ... As Evatt J pointed out in Telegraph Newspaper Co Ltd v Bedford, the 'guiding principle' of reciprocal duty or interest, which is necessarily broad and general, is based solely on public utility. When a publication is said to have been made in discharge of a social or moral duty, the occasion is privileged only if it be in 'the interest of the community', 'for the welfare of society' or 'for the good of society in general' - these phrases being synonyms for Baron Parke's 'for the common convenience and welfare of society'. When it is said that a publication is privileged because it is made in the public interest, 'interest' is not to be equated with curiosity. It is used in a non-technical sense to mean that the publication is made for the welfare of society. As Bedford's case illustrates, a publication defamatory of the plaintiff is not made on an occasion of qualified privilege merely because the person or persons to whom it is made - in that case, the readers of the newspaper - were interested in the subject matter. And, if the publication is made to protect an interest of the person making the defamatory statement, the publication is protected only if it be made to 'a person who, if the defamatory matter be true, may reasonably be expected to be of service in the protection of the interest'. The common law places a higher value on the protection of personal reputation than on the satisfaction of curiosity or on the dissemination of defamatory material which is not reasonably calculated to be of service in the protection of the interests of the person making the defamatory statement."
105In Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354 at 358, the nature of the interest relevant to the defence of qualified privilege at common law was described as "... an interest material to the affairs of the recipient of the information such as would for instance assist in the making of an important decision or the determining of a particular course of action".
106In Morosi v Mirror Newspapers Ltd, this Court, after an extensive examination of the authorities, held that defamatory statements do not fall within the scope of common law qualified privilege merely because they may relate to a matter of public interest. It said, at 778:
"It is apparent from these decisions and dicta that, at common law, a publication in a newspaper is not the subject of qualified privilege merely because it gives the public information concerning a matter in respect of which the public is interested. Something more is needed which is said in some circumstances to constitute a duty, and in other circumstances an interest, on the part of the newspaper to communicate the information."
And, at 792:
"Newspapers play an important role in our society, but that role does not call for an unrestricted licence to defame people, simply because it can be shown that the defamatory material was part of an article or other form of publication on a matter of public interest, and that the publication was not malicious. Defamatory publications on matters of public interest are protected under the common law, and by statute, in various ways, but something more than mere public interest is required. It may be truth; or it may be reasonableness, in all the circumstances, of the conduct of the publisher in making the publication; or it may be some other requirement."
107The application of these principles leads to the clear conclusion that the primary judge was correct in finding that there was, in the present matter, an absence of the necessary reciprocity of duty and/or interest. As his Honour said:
"[80] Ms Mundine submitted that the weight of authority was strongly against there being a defence of qualified privilege for the unrestricted publication in the circumstances in this case. The analysis in Morosi in particular shows an important difference between addressing a problem in general terms and attacking individuals involved in the situation. As the submissions of Ms Mundine emphasise, whilst public discussion of any matter of public interest will usually be for the benefit of the public, that is not sufficient to establish that such a publication is for the common convenience and welfare of society, or that a special and reciprocal interest exists. If what Mr Cohen had to say about Mr Bennette at the two public meetings at which he spoke did not qualify as statements made on occasions of qualified privilege, the article here in question must also not qualify.
[81] 'If a publication is made to a large audience, a claim of qualified privilege at common law will fail unless the members of the audience all have an interest in knowing the truth': per Ipp JA in Bennette v Cohen at [25]. Even if it is to be hoped that all of the readers of the Daily Examiner in 2008 would have had an interest in knowing the truth about the crisis in the provision of health services to members of the Aboriginal community in the Clarence Valley, it was at the level of a general and public interest in the topic. They did not in my view all have the special and reciprocal interest necessary for the defence of qualified privilege. It is one thing to assert that the recipients had a special and reciprocal interest in the subject matter of the publication, even as broadly described as an interest in information of the kind conveyed, and to assert that the recipients may have been merely interested in what was published. They are different. If it were otherwise the unlimited publication of defamatory material to the world at large could be legitimised merely by the identification of a subject matter arguably of general interest to the public. The currently qualified privilege to disseminate defamatory matter would become unqualified. This would be to discard, or to disregard, the current requirement that a defendant establish the special and reciprocal interest between it as the publisher of the material concerned and the recipients to whom it is disseminated."
108While it may be accepted that the problems of Aboriginal mental health and Aboriginal criminality were important topics in the Clarence Valley area, the appellants had no duty to attack the professional reputation of Ms Mundine and publish any such attack to their readership of more than 11,000 persons, more than 1,000 of whom lived outside the Clarence Valley. Similarly, the very large readership, while no doubt "interested" in a general sense in the topic, did not have the "special and reciprocal" interest as between themselves and the publisher of the article necessary to found an occasion of qualified privilege. It may well be that Mr Brown's position entitled him to raise his concerns - even if he were wrong in his views about Ms Mundine - with the CEO of the AMS or its Board. But that did not, in any sense, provide him with the defence of common law qualified privilege for the broader publication chosen by himself and the newspaper.
109Mr Reynolds then argued that it was necessary to "read between the lines" to find the slur against Ms Mundine. In our opinion, that is not so. The article as a whole conveys a general flavour of incompetence, but the linkage to Ms Mundine is most sharply made by the reference in paragraph 14 to "the Aboriginal workers attached to mental health and domestic violence services". To anyone with knowledge of the local area and its services, it should have been obvious, if it had been considered, that this reference could well be understood as a reference to Ms Mundine. The real subject matter of the article was that those who worked in providing Aboriginal services - especially workers attached to mental health and domestic violence services - were letting their own community down. There is obviously a considerable difference between addressing a problem in general terms and attacking individuals involved in the situation. The authorities establish that, whilst public discussion of any matter of public interest will usually be for the benefit of the public, that is not sufficient to establish that such a publication is made on an occasion of qualified privilege. For that to be shown, a special and reciprocal interest must be shown to exist, and the appellants have simply failed to do so.
110We do not consider that the appellants have demonstrated any merit in relation to the issue of common law qualified privilege.