Timing issues
105 A matter on which counsel for Mr Gould placed considerable emphasis in resisting the availability of the privilege in reply to attack was the period of time which elapsed between the attacks and Mr Jordan's address to the NPC. In the case of Mr Hyde Page's statements published in the SMH on 17 October 2013, the period was just on three years and nine months; in the case of Mr Hyde Page's statements to Mr Jones on 26 June 2014, the period was three years; and in the case of Mr Gould's statements to the Standing Committee on 18 August 2014, the period was just over two years and 10 months.
106 It was common ground that the time at which the response is made relative to the time of the attack is relevant to whether it was made on an occasion of privilege: Gatley on Libel and Slander (12th Edition) at [14.19], albeit in relation to the defence of qualified privilege generally. A lapse of time may tell against the genuineness of a claim to privilege (Howlett v Holding [2003] EWHC 286 at [29]); may bear upon the sufficiency of the connection with the attack; and may bear on the question of whether the reply should be characterised as retaliation.
107 Counsel for Mr Gould noted that in most cases in which the reply to attack privilege has been upheld, the interval between the attack and the reply has been relatively short: Adams v Ward [1917] AC 309 (just over one month); Loveday v Sun Newspapers (at most three weeks); Penton v Calwell (a campaign of attacks with the last occurring on the day prior to the response); Kennett v Farmer [1988] VR 991 (attack and response on the same day); and Harbour Radio v Trad (response the day after the attack).
108 However, the cases in which delay has been regarded as relevant have also involved other factors.
109 The first case cited in Gatley, Howlett v Holding, is an example. In that case, the plaintiff sued in respect of publications made on 25 April 2001, 21 May 2001 and 22 March 2002 and on 8 January 2002. The defendant had been prompted to publish the impugned matters by statements made by the plaintiff, as local council member, between one and two years previously, on 15 May 2000, in opposition to an application by him for planning approval. However, the subject matter of his publications concerned the alleged shoplifting of the plaintiff in January 1996. On the application of the plaintiff to have the defence of qualified privilege struck out, the focus of Eady J was on whether the defendant had had a social or moral duty to make the impugned statements at the time they were made. In finding that there was no such duty, Eady J took into account a number of matters:
(a) the defendant had known of the allegations of the plaintiff's shoplifting since January 1996, at [19];
(b) the defendant had been prompted to make the impugned statements by the unconnected conduct of the plaintiff in speaking against his planning application, at [19];
(c) although the defendant relied on the relevance of his statements to the plaintiff's suitability for election to the local council, she had in fact stood for election at two elections between the occurrence of the alleged shoplifting and the defendant's publications without him thinking it appropriate to make his statements;
(d) the defendant's allegation were based on "rumour, speculation or gossip", at [27]; and
(e) the long period which had elapsed between the time of the alleged conduct and the publication.
110 Thus, the lapse of time was but one of several matters indicating that the defence of qualified privilege was not available. Furthermore, the decision of Eady J did not, in any event, concern the form of qualified privilege involving replies to attacks.
111 The second authority cited by Gatley, Goyan v Motyka [2008] NSWCA 28, also involved a history of some complexity. There had been a lapse of approximately six years from one of the attacks to which the defendant purported to respond. Tobias JA, with whom the other members of the Court agreed, held at [92], that the information was "stale", did not constitute a "relevant matter of interest", and that there was "no relevant link" between the events which occurred six years previously and the subject matter of other impugned statements of the defendant.
112 With specific reference to the reply to attack form of qualified privilege, the authors of Gatley (12th Edition) say, at [14.51]:
The longer the time between the attack and the reply, the more likely that the response will be treated as retaliation.
113 In support of this proposition, Gatley cites Henry v British Broadcasting Corporation [2005] EWHC 2787 (QB) in which Gray J rejected a Reynolds defence of qualified privilege based, in part, on reply to attack because over a year had elapsed between the attack and the reply. However, given the complex factual circumstances of Henry v BBC, it is difficult to extract from the judgment any general principle concerning the effect of delay other than that stated by Gatley and that each case must turn on its own facts.
114 The view that each case may turn on its own facts is supported by the obiter comments of Handley AJA in Goyan v Motyka, at [120]:
In my opinion the time that has elapsed since events referred to in a defamatory publication does not necessarily take that publication outside the scope of common law qualified privilege, or afford evidence of malice. An allegation of sexual abuse by a teacher many years before would not, for that reason alone, be outside the privilege, and the same would apply to allegations of past financial misconduct by a person in a position of trust.
115 Apart from the reliance on the United Kingdom authorities just mentioned, counsel for Mr Gould placed considerable emphasis on the rationale for the privilege stated by Dixon J in Penton v Calwell at 233-4, namely, the necessity of allowing the party attacked free scope to place his or her case before the body whose judgment the attacking party has sought to affect. The time within which the body is forming its judgment concerning the criticisms is an indication, counsel submitted, that there should be some contemporaneity between the attack and the response.
116 Counsel elaborated this submission in different ways: first, that with the passage of time, the attack will lose its currency, i.e, those who have heard the attack will have formed their judgment about its subject matter and will have "moved on"; secondly, that delay will have the effect that the attacks and the information in them becomes "stale"; thirdly, that the privilege does not exist to enable the settling of old scores or to reopen old wounds or even to allow corrections of the historical record; and fourthly, that with the passage of time, the audience hearing the response will not be the same audience which heard the attack and accordingly have less interest in hearing the response to it.
117 With respect to the first of these matters, counsel referred to the viewpoint of persons who had seen or heard the public statements of Mr Hyde Page on 17 October 2013 and on 26 June 2014 concerning the arrest of Mr Gould and others on criminal charges. He queried whether such persons would have appreciated that they should await the outcome of the HWB Litigation before Perram J before forming judgments about the merit of the criticisms. Why, counsel asked rhetorically, would [the hypothetical] person be saying, "oh, to understand all this I should wait to understand what Perram J decides about some taxpayer companies in a civil case?"
118 In my view, this submission tended to give the expectation of the hypothetical reader of, or listener to, the attacks an undue importance. As a matter of principle, the period during which the occasion of the qualified privilege exists is not determined solely, or even predominantly, by the expectations of such persons as to when a response will be made. The question, as counsel for Mr Jordan submitted, is whether the impugned publication is made for the purpose of putting before the recipient audience the answer to the defendant's attack and whether it was commensurate to that attack. That is to say, whether there is sufficient connection between the attack and the response. Giving prominence in the consideration of those matters to the time at which a hypothetical reader or listener may have expected such a response to be made would, in my view, be a distraction.
119 Several of counsel's submissions to the effect that reasonable contemporaneity in response is required, because the purpose of the privilege is to allow the attacked party to place his or her case before the body whose judgment the attacking party has sought to affect, seemed to be based on an unstated premise. This was the view that the privilege exists in order to enable persons attacked to make their responses before the recipient audience has formed its judgment, and not afterwards. In my opinion, this unstated premise is unsound. At least in relation to matters which retain some currency, there is no reason in principle why the privilege should not be available to those seeking to correct or affect judgments already made, as well as informing those yet to be made or which are in a process of development. None of the authorities suggest a limitation of the kind supposed by counsel's submission.
120 It is common experience that, when criticisms are made publically about a person, there are some who accept readily the validity and merit of the criticism and, in effect make their judgment. However, many reasonable readers and listeners know the merit of the aphorism that there are two sides to every story and know that one should be cautious about forming immediate judgements based on the criticisms by one person of another. The reactions of members of the community to public announcements of the commencement of a prosecution, or of the launching of an official inquiry into a contentious matter, provide examples. While ordinary reasonable readers and listeners may consider that the commencement of the prosecution or the inquiry is indicative of the existence of grounds for suspicion about their subjects, they know that the legal process is to be played out and that they should await its conclusion before forming final views: Mirror Newspapers Ltd v Harrison [1982] HCA 50; (1982) 149 CLR 293 at 300-1 (Mason J). The audience knowing these matters also knows that legal processes can be protracted, and that, depending upon the nature of the matter, it can be months or years before they are concluded. For such audiences, the subject matter of the prosecution or inquiry has a continuing currency.
121 These matters suggest two matters of present relevance: the privilege does not cease to be available because the audience for the attacks has already formed a judgement about the subject of them, and the time in which ordinary reasonable readers and listeners do form judgements may be prolonged.
122 In my view, a number of matters may bear upon the significance, if any, to be attached to a lapse of time before the making of a response in the consideration of the availability of the qualified privilege. In addition to the length of time which has elapsed and the purpose of the privilege, these matters may include the nature, content and character of the attack; the nature, content and character of the response; the continuing currency (if any) of the information in the attacks; the explanation for the elapse of time, including any constraints or inhibitions to which the person attacked was subject which may have borne upon their ability or willingness to make a more prompt response; and any other relevant events which have occurred in the interim. Handley AJA referred to two such examples of such matters in his obiter remarks in Goyan v Motyka to which I referred earlier.
123 In the present case, considered objectively, a number of matters make it understandable that Mr Jordan did not make any response until after the finalisation of the HWB Litigation, including the finalisation of the appeals. The first is that, on the afternoon of 17 October 2013, Perram J raised with Mr Hyde Page his concerns about his conduct, while counsel, in having made public statements concerning the very litigation in which he was then engaged. Mr Hyde Page accepted that the concerns of Perram J were "well-grounded", that his remarks had been "wrongful", and he apologised to the Court for having made them. Those present or informed of these circumstances would have understood that there was a judicial admonition, followed by an apology by counsel. This circumstance by itself would have served as a statutory reminder to all involved in the litigation of the need for caution before making public statements concerning, or relating to, the litigation.
124 Independently of that consideration, it is a matter of ordinary prudence to await the conclusion of a matter before making a public response. That prudence is reflected in the proverb "they who laugh last, laugh longest". That consideration meant that a response before the judgment in Bywater HCA may well have been premature.
125 Counsel for Mr Gould drew attention to the absence of any evidence from Mr Jordan as to the constraints or inhibitions to which he may have felt himself to be subject in responding to the criticisms of Mr Hyde Page and Mr Gould. Counsel disclaimed, however, a submission that a Jones v Dunkel inference should be drawn.
126 Counsel also referred to a letter which Mr Jordan had sent to the Office of the Legal Services Commissioner (LSC) in New South Wales on 15 April 2015, containing a complaint concerning the conduct of Mr Hyde Page in four pieces of litigation, one of which was the HWB Litigation. Mr Jordan drew the Commissioner's attention, amongst other things, to the email which Mr Hyde Page has sent to the SMH containing "inflammatory comments about the Project Wickenby area" which had been published in the SMH on 17 October 2013. He expressed the view that the conduct of Mr Hyde Page was "potentially" a breach of New South Wales NSW Bar Rule 75. Mr Jordan also drew the Commissioner's attention to the statements of Mr Hyde Page in the "interview" with Mr Jones on Radio 2GB on 26 June 2014.
127 As I understood it, counsel referred to this correspondence to illustrate three matters, that:
(a) despite the then pending appeal against the judgment of Perram J, Mr Jordan had not felt any constraint in making his complaint to the LSC on 15 April 2015;
(b) the fact that Mr Jordan had allowed some four months to elapse after the delivery of judgment by Perram J before making the complaint to the LSC was an indication of a lack of expedition on his part; and
(c) the explanation which Mr Jordan gave to the LSC for not making his complaint earlier did not have continuing currency. Mr Jordan's explanation was that there had been "genuine concerns within the ATO that the making of a complaint [shortly after 17 October 2013 or shortly after 26 June 2014] may have been construed as putting improper pressure on Mr Hyde Page while he was in the course of representing his clients", with the consequence that the ATO had decided to "delay the making of any complaint until such time as the cases had been determined". Counsel submitted that, if considerations of this kind had constrained Mr Jordan before 15 April 2015, then they no had longer operated as and from that date.
128 Mr Jordan's letter to the LSC of 15 April 2015 indicates that, at least by that date, he did not feel a constraint about making a complaint about Mr Hyde Page's conduct to the appropriate professional body. However, as counsel for Mr Gould accepted, there is a difference between making a complaint to a professional body, on the one hand, and making a public statement, on the other. It was not suggested that the complaint to the LSC had been made public and it is likely that, at least in the first instance, it was disclosed by the LSC to Mr Hyde Page only. Secondly, it is pertinent that the subject matter of Mr Jordan's complaint was not confined to the conduct of Mr Hyde Page in relation to the HWB Litigation. An aspect of the conduct of Mr Hyde Page which Mr Jordan raised in the complaint was his alleged contacting of ATO staff directly in relation to matters which were the subject of current litigation, and seeking information from those staff, about matters pertinent to that litigation. Mr Jordan alleged that, despite being asked to desist from this conduct, Mr Hyde Page had both asserted his right to do so and had in fact continued to do so. It would be understandable that the ATO would wish conduct of that kind, if it was occurring, to cease forthwith. That circumstance, as well as other aspects of Mr Hyde Page's conduct, may have given rise to some imperative (or additional imperative) for the complaint to be made to the LSC at that time it was. There is of course a degree of speculation or surmise about this, but it is sufficient to indicate that the matters raised by Mr Jordan in his letter of 15 April 2015 were directed to a more specific audience and to a more specific purpose than a more general response to the attacks made on the ATO on 17 October 2013, 26 June 2014 and 18 August 2014.
129 Counsel for Mr Gould referred to the opportunities which Mr Jordan had had, before 5 July 2017, to respond to the attacks of Mr Gould and Mr Hyde Page. He tendered a list of the public speeches given by Mr Jordan between October 2013 and 5 July 2017 which, he contended, demonstrated those opportunities. As I indicated to counsel, even without this exhibit, one could have inferred that Mr Jordan could have found an occasion on which to make a response at an earlier time. However, the mere fact that earlier occasions could have been found does not overcome the matters bearing upon the appropriateness of an earlier response to which I referred earlier. For the reasons already mentioned, I consider it objectively reasonable that Mr Jordan deferred any response until after the completion of the then current litigation.
130 Counsel also referred to evidence that Mr Jones had, on 5 December 2014, sent an email to Mr Jordan expressing his horror "at the evidence given to this Parliamentary inquiry into tax disputes". The suggestion seemed to be that this too represented an opportunity for Mr Jordan to have responded publically to the attacks. Even assuming that Mr Jones' email to Mr Jordan constituted an invitation to him to do so, I would not, for two reasons, attach any significance to it. The first is that, at the time of the "invitation", Perram J was still reserved on his judgment and, for the reasons given earlier, it is understandable that Mr Jordan thought it appropriate to be circumspect in making public statements until the HWB Litigation had been finalised. Secondly, and in any event, it would be very understandable, given the florid character of the statements made by Mr Jones on 26 June 2014, that Mr Jordan would have considered a more measured forum appropriate for the making of a response.
131 I have said that the character of the subject matter of the attack and the response, and the currency of the subject matter may also be relevant to the significance, if any, to be attached to the lapse of time. In relation to these matters, I consider, for the reasons which follow, that it should be accepted that the subject matter of the attacks did, in July 2017, have an ongoing currency. The attacks did not concern an isolated event of historical significance only.
132 The ordinary reasonable listeners to, and readers of, the statements of Mr Hyde Page and Mr Jones in 2013 and 2014 would have understood them to be referring to activities of Operation Wickenby. It was referred to expressly in each of the statements. Operation Wickenby had achieved public notoriety, evidenced in this case by the manner in which both Mr Gould and Mr Hyde Page referred to it in their criticisms and in Mr Jordan's introductory comment in the impugned statements: "It was a Wickenby case". The use of that shorthand expression was sufficient to convey to listeners something about the nature of the case. The ordinary reasonable listeners and readers would have had some understanding that Operation Wickenby was an ongoing operation concerning tax avoidance and evasion by wealthy Australians. Many would also have understood that it involved an investigation of the use of tax havens to avoid taxation liabilities in Australia. They would not have understood the references by Mr Hyde Page and Mr Gould to Operation Wickenby as references to one-off or self-contained events. In my view, public awareness that Project Wickenby had involved ongoing activities over an extended period served by itself to maintain the currency of the subject matter of the attacks.
133 The ongoing currency of the matters is also indicated, in part, by the journalist's query about the dispute which Paul Hogan, a public figure, had had with ATO which had been subject of media attention. It was also indicated by Mr Jordan's introduction of his example concerning the HWB Litigation as "a Wickenby case". In the context of the notoriety to which reference was made earlier, ordinary reasonable listeners would have understood Mr Jordan's reference to "a Wickenby case" as a reference to the joint taskforce of the ATO and the AFP, conducted over a protracted period, investigating tax avoidance and evasion by wealthy Australians. They would also have understood it as a reference to an operation which had attracted some criticism of the ATO and the AFP. It seems reasonable to infer that Mr Jordan's immediate audience, in particular, the journalists attending the NPC lunch, would have had some familiarity with Operation Wickenby and the newsworthy matters it had elicited.
134 In short, the circumstances to which Mr Jordan referred were not matters which had gone stale or had otherwise lost currency. Mr Jordan was referring to matters which had, at the least, continued currency until the delivery of the High Court judgment on 16 November 2016. They concerned the outcome of a major operation in which the ATO had been a participant and in respect of which it had been the subject of public criticism by Mr Hyde Park and Mr Gould.
135 I do not regard the absence of evidence from Mr Jordan concerning the time which elapsed before he made the response to be significant. The matters to which I referred earlier indicating the prudence of deferring a response had an independent existence to which reference may be made in the determination, objectively, of the existence or otherwise of an occasion of qualified privilege. I also note that Mr Jordan had alluded to constraints to which he thought the ATO was subject in the 13th sentence in the impugned statements ("Sometimes there's two sides to a story and I can't always tell the other side").
136 In my opinion, considered objectively, it was appropriate for Mr Jordan to defer any response until the whole of the then current litigation had been finalised. Perram J delivered his judgment on 19 December 2014; the Full Court delivered its judgment on 11 December 2015; and the High Court delivered its judgment on 16 November 2016. This accounts for a large part of the period which elapsed between the making of the attacks on which Mr Jordan relies, and his response on 5 July 2017.
137 It is true that another seven months elapsed after the delivery of the judgment of the High Court but it would be unrealistic to regard the matter as having gone stale in that further period.
138 For these reasons, I reject Mr Gould's submission that the lapse of time from the attacks means that Mr Jordan's response could not have been made on an occasion of qualified privilege.