Did the primary judge err in rejecting the defence of common law qualified privilege?
83 In my opinion, no error has been demonstrated in the primary judge's determination of this issue. As was submitted by the respondents, the Goyans' submission to the contrary ultimately rested on the proposition that the reciprocal interest arose out of the parties' common ethnicity and because the respondents were prominent and active members of the Ukrainian community.
84 It was therefore submitted that the Goyans' case required this Court to hold that, as a general proposition, defamatory attacks on a "prominent and active community member" by other members of that community and relating to the former's activities within the community deserved the protection of common law privilege. Such a finding, it was submitted, would be entirely without precedent. I agree.
85 The authorities outlined by McColl JA in Moit v Bristow and extracted at [43] above, establish that the relevant "interest" must transcend curiosity.
86 Thus in Bashford McHugh J (at 390 ff), although dissenting on the facts, stated the following principles which the parties accepted as an accurate statement of the law on this subject:
"[65] In determining whether the communication was made to discharge a duty or to protect or further an interest, the common law has drawn a distinction between statements replying to a request for information or responding to an attack and statements that are volunteered by the publisher. Where the defamatory communication responds to an attack on its publisher or some person connected with him or her, the common law has adopted a liberal approach to the question of duty or interest. Not only has it usually held that the publisher had a duty to respond or an interest in responding but, as a consequence, it has taken a very liberal view of what constitutes an 'interest' in those who receive the response. …
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[71] But not every relevant answer to a request for information concerning the character, reputation or credit-worthiness of another is published on an occasion of qualified privilege. The occasion will not be privileged unless the person making the inquiry has a legitimate interest in obtaining the information. Interest for this purpose - and the law of qualified privilege generally - means more than an interest in the information 'as a matter of gossip or curiosity'. The interest must be a social, moral or economic interest that is sufficiently tangible for the public interest to require its protection. The interest of the recipient, said Evatt J in Telegraph Newspaper Co Ltd v Bedford , must be 'a real and direct personal, trade, business or social concern'. The occasion will not be privileged simply because the defendant believes that the recipient had a relevant interest in receiving or duty to receive the communication.
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[73] Different considerations apply when the defendant volunteers defamatory information. Ordinarily the occasion for making a volunteered statement will be privileged only where there is a pressing need to protect the interests of the defendant or a third party or where the defendant has a duty to make the statement to the recipient. The common law has generally perceived no advantage to society in giving qualified privilege to volunteered statements in the absence of a pre-existing reciprocity of interest between the defendant and the recipient. It has taken the view that the reputation of the defamed should be preferred over the freedom to publish volunteered but defamatory statements that may or may not be true. In most cases, a defendant who publishes a defamatory statement that neither protects his or her interests nor answers a request for information will have to rely on some other defence, such as truth or fair comment …
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[77] But where neither life is in immediate danger nor harm to the person or injury to property imminent, the fact that the defendant has volunteered defamatory matter is likely to be decisive against a finding of qualified privilege. Thus, the customer of a shopkeeper in answer to a request by a potential customer is entitled to give his or her opinion as to the quality of the shopkeeper's goods, and when he or she does so, the reply will be published on an occasion of qualified privilege. But the case is different where the customer voluntarily defames the character or reputation of the shopkeeper to potential customers. The point is well illustrated by the famous case of Toogood v Spyring ."
87 It is also of assistance to cite the following further passage from the judgment of McHugh J in Bashford (at 386-387):
"[55] It is of the first importance to understand that references to concepts such as 'the common convenience and welfare of society' and similar phrases record a result and explain why the communication and the relevant duty or interest gave rise to an occasion of qualified privilege. Such concepts are not the determinants of whether the occasion is privileged. They must be distinguished from the question whether society would recognise a duty or interest in the publisher making, and the recipient receiving, the communication in question. As Jordan CJ pointed out in Andreyevich v Kosovich , it is necessary to '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'. It is only when the defendant has a duty to publish or an interest in publishing the particular communication and the recipient has a corresponding duty or interest that the occasion is privileged. It is only when this reciprocity of duty and interest is present that the common law regards publication of the communication as being for the common convenience and welfare of society."
88 Three points need to be made. First, there was no suggestion that the Goyans, unlike the defendant in Skalkos, had some special knowledge with respect to the public conduct of the respondents in the sense referred to by McHugh J in Stephens in the passages recorded by me in [70] above. Second, the present case is one where the Goyans volunteered the defamatory information: the letters were not a response to a request for information or an attack on Mrs Goyan. Third, it is difficult, given the manner in which the matters complained of were expressed and the general tone of the publications, to appreciate how the communication thereof to members of the Ukrainian community could promote the welfare of the society in which they were published.
89 In my view the respondents' submission that the publication of the relevant letters to the general Ukrainian community defeated the privilege because the class of people with the interest (if any) reciprocal to that of the Goyans was not the Ukrainian speaking community in Australia should be upheld. The class was far too wide to satisfy the requirement of reciprocity in the present case.
90 Furthermore, the language of the matters complained of was so excessive, vituperative, irrational and spiteful as to warrant the primary judge's conclusion that the protection of the privilege should not be afforded to the subject publications. My description of the matters complained of mirror those of the primary judge in his description of the 21 November letter (at [187]), the 28 January letter (at [192]) and the 28 August letter (at [203]).
91 So far as the 25 February and 12 April letters published as part of the book are concerned, the primary judge was clearly correct in accepting that their publication in the book was not an occasion of qualified privilege even if their original publication was. The Ukrainian community clearly had no relevant interest in, or concern regarding, the content of personal communications relating to the expulsion of Mr Goyan from the USFA at the January AGM which, at its highest, involved a personal disagreement between he and Dr Motyka.
92 So far as the letters of 15 and 17 November are concerned which related in particular to allegations concerning Mrs Ostrowskyj, I do not accept the Goyans' submission that either Mrs Goyan had a relevant interest in publishing defamatory imputations (and, in particular, those in the letter of 15 November) or that the recipients had a relevant interest in receiving them given that they referred to events relating to a third party which had occurred some six or seven years prior to their publication. The information was stale and did not constitute a relevant matter of interest. Furthermore, in my view there was no relevant link between those events and the grievances which were the subject of the Goyan's other letters.
93 Finally, I would reject the Goyans' submission referred to in [66] above. In my opinion it is clear from the structure of his Honour's reasons that, at the very least, the parts of the letter to which he was referring in [209] were those parts relied upon by the respondents as particulars of malice (see [21] above). For myself I would be inclined to accept the respondents' submission that the irrelevant matter extended to the whole of the letters given their general theme and the excessive language in which they were expressed. Being in the same vein throughout, it would be a difficult, if not impossible, task to isolate exactly what parts were within and which were without the privilege.
94 Thus although I accept that matter's irrelevance to the occasion, if not extending to the whole of the matters complained of, only results in a loss of privilege with respect to that irrelevant matter, in the present case it was unnecessary for his Honour to fully identify with precision (if that were possible) those parts of the letter which he found to be irrelevant to the occasion or an abuse of the privilege given his finding (at [206]) with which I agree, that none of the publications were published on an occasion of common law qualified privilege.
95 For the foregoing reasons in my opinion the primary judge was correct to find (at [206]) that none of the publications were published on an occasion which attracted common law qualified privilege and (at [209]) that in any event the privilege (if any) had been lost as significant parts of the contents of the letters went well beyond, and were therefore irrelevant to, the occasion contended for.