Holmes a Court v Papaconstuntinos - [2011] NSWCA 59 - NSWCA 2010 case summary — Zoe

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Holmes a Court v Papaconstuntinos

[2011] NSWCA 59

Court of Appeal (NSW)|2010-12-01|Before: Allsop P, Beazley JA, Giles JA, Tobias JA, McColl JA, McCallum J

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Source facts

Court

Court of Appeal (NSW)

Decision date

2010-12-01

Before

Allsop P, Beazley JA, Giles JA, Tobias JA, McColl JA

Source

Original judgment source is linked above.

Judgment (16 paragraphs)

[1]

Background 25In 2005 Mr Russell Crowe and the appellant made a bid for the controlling interest in the South Sydney District Rugby League Football Club ("Souths"). Their bid involved injecting $3 million into Souths in exchange for a controlling interest in its management. The proposal contemplated substantial changes to the corporate structure of the club. Its implementation required the approval of the members in general meeting: primary judgment (at [2]). At the time Mr Holmes a Court and Mr Crowe forwarded their proposal the respondent (who was often referred to in every day parlance as "Tony Papa") was one of the directors of the Souths Sydney Leagues Club, a licensed club associated with Souths: primary judgment (at [3]). He was also an employee of the Construction, Forestry, Mining and Energy Union (the "CFMEU"): primary judgment (at [1]). 26The respondent was also a keen Souths' supporter. He was staunchly opposed to the proposed takeover of Souths. An Extraordinary General Meeting ("EGM") at which the proposal was to be put to the members' vote was called for Sunday, 19 March 2006. The venue of the meeting was Sydney Olympic Park, as many members were expected to attend : primary judgment (at [4]). 27The appellant sent the matter complained of to Mr Andrew Ferguson, the State Secretary of the CFMEU, on 17 March 2006. It was written on the letterhead of Whitebull Holdings Pty Ltd, the appellant's company and read: "Dear Andrew, Pursuant to our conversations recently, I would like to formally complain about the behaviour of an official of the CFMEU, Mr Tony Papa. I have spoken to you previously about my concerns about Mr Papa's use of the South Sydney District Rugby League Football Club for his own advancement and I am afraid I am under the impression that it has continued. As recently as last weekend, half an hour before the kick off of the Rabbitohs-Roosters match, Mr Papa called at least one voting SSDRLFC Member to repeat misleading information about the proposal which is being put to Members. I am, frankly, at a loss to understand why Mr Papa has worked so hard to spread misinformation about the proposal. I am also aware that another CFMEU member, Mr Tony Bleasdale has joined the board of the South Sydney Leagues Club. I have been informed by a senior member of those opposing our bid that Mr Bleasdale bought $20,000 of funding to pay for activities of the 'No Camp'. I am concerned that CFMEU funds may have been commingled with Mr Bleasdale's funds in supporting the No Camp. Perhaps most seriously, I am concerned that Mr Papa has personally benefited from funds meant for the Football Club through the employment of his son Jamie in an assistant coaching staff position. Jamie Papa was employed by the club by Mr George Piggins in an assistant coaching position and his employment was terminated by Shane Richardson when Mr Richardson became aware of the overpayments. Having reviewed the accounts of the club, reconciled Mr Papa's CV and job description with other coaching staff, and having personally interviewed senior members of the management of the Club, there is no doubt in my mind that Mr Jamie Papa was paid a salary many times the going salary for a person of his experience and for the position that he was performing. Specifically, Mr Jamie Papa was paid a salary of approximately $60,000 when the going rate for the role he was performing was closer to $4,000. I do not know whether these funds that were paid to Mr Papa at a premium were a reward for other activities, or a method of channelling funds to the CFMEU, or indeed to Mr Tony Papa. I am concerned that this chapter of Souths history is going to continue, partially as a result of Mr Tony Papa's efforts and well funded campaign to spread misinformation. I am seeking your assistance in checking the facts that I have presented, which are based on our very extensive due diligence of the Football Club's records collaborated with statements and telephone records of voting members (which I can supply at the appropriate time). Finally, I would reiterate the request I made last week that the CFMEU remove the Green Ban on the redevelopment of Redfern Oval. The Football Club has written to you to ask that the CFMEU now support the redevelopment plans as they provide the Football Club with badly needed professional training facilities (see attached) and drop the green ban. If the CFMEU lifts the ban now, these facilities will be ready in time for the 2008 season. I couldn't think of a more fitting gesture than to see the Rabbitohs return to Redfern in 2008, the centenary of Rugby League in Australia. I would respectfully request that I hear from you today. Yours sincerely, Peter Holmes a Court Cc: Nicholas Pappas Attached: Richardson letter to Ferguson re Redfern Oval redevelopment". 28The appellant copied the letter to Mr Nicholas Pappas, a solicitor and former Chairman of Souths. The primary judge was satisfied that the letter was published to both Mr Ferguson and Mr Pappas, as well as to Mr Brian Parker, the respondent's immediate supervisor at the CFMEU. Her Honour was also satisfied that Mr Ferguson's personal assistant, Jennifer Class, read it briefly: primary judgment (at [8] - [9]). 29In about August 2005 the appellant and those associated with the bid undertook a due diligence examination of Souths as part of the bid process. In the course of due diligence examination, and certainly by December 2005, the appellant had become aware of the allegations concerning the respondent's son's employment at Souths to which he referred in the matter complained of. He learned no new information about this matter between December 2005 and when he sent the matter complained. He said at trial that he did not correspond with Mr Ferguson about the allegations even though he was in communication with him in late 2005/early 2006 as there was no reason to do so because no one from the CFMEU was actively opposing the bid. 30The primary judge found (at [70]) that while the information obtained as a result of the due diligence "was, on its face, highly suspicious [h]owever, those were events which had emerged, and been dealt with by the club, some time earlier." This appears to have been a reference to the fact (referred to in the matter complained of) that Mr Richardson (who was the Chief Executive Officer of Souths) had terminated the respondent's son's contract in 2004 when he became aware of the overpayments. 31On receipt of the matter complained of Mr Ferguson tried to contact the appellant. He left a number of telephone messages for him to which he received no response. The men finally met to discuss the allegations in the week of 29 March 2006. The appellant and his associates in due course took control of Souths. The appellant did not take any steps thereafter to investigate the allegation that the respondent had channelled club funds to the CFMEU. 32It should be noted that the respondent gave what appears to have been unchallenged evidence at trial that he had been unaware that his son's employment with Souths involved individual sponsorship. There was no defence of truth: primary judgment (at [65]).

[2]

The primary judgment 33The primary judge found that the matter complained of conveyed the following imputations of and concerning the respondent and that they were defamatory of him: (a) that the plaintiff, a board member of the South Sydney Leagues Club, repeated information he knew to be misleading about the defendant's proposal to take a controlling interest in the South Sydney Rugby League Football Club (at [18]); (b) that the plaintiff, a board member of South Sydney Leagues Club, was reasonably suspected by the defendant of corruptly arranging for funds meant for the South Sydney Rugby League Football Club to be channelled to himself (at [32]); and (c) that the plaintiff, a board member of the South Sydney Leagues Club, and an official of the CFMEU, was reasonably suspected by the defendant of corruptly channelling overpayments by the South Sydney Rugby League Football Club to the CFMEU (at [30]). I will adopt the respondent's approach of referring to imputation (a) as the "misleading allegation" and to (b) and to (c) as the "corruption allegations". 34At trial, the appellant sought to rely on two defences: first, that the matter complained of was published on an occasion of qualified privilege at common law, and secondly, that it was published in circumstances where the plaintiff was unlikely to suffer harm. He failed on both defences. Having regard to the limited issue on appeal, it is only necessary to consider the primary judge's reasons on the qualified privilege issue. It is important to record at the outset, however, that her Honour recorded her findings of fact on the issue of malice in case her conclusion that the letter was not published on an occasion of qualified privilege was wrong. She held that malice was not established. The respondent does not challenge that finding. 35The primary judge commenced her consideration of the defence of qualified legal privilege by noting that while "[t]he principles to be applied in determining whether a defamatory statement was published on an occasion of qualified privilege are well settled and may be stated in relatively simply terms", the "complexity lies in their application" (at [40]). Her Honour described McHugh J's judgment in Bashford as having considered "[t]he proper approach to the Court's task", and set out his Honour's statement (at [53]): "At common law, a defamatory statement receives qualified protection when it is made in discharge of a duty or the furtherance or protection of an interest of the maker of the statement or some person with whom the publisher has a direct, business or social connection, and the recipient of the statement has a corresponding duty to receive or interest in receiving it." 36After referring to the necessity to examine all the circumstances of the case in determining whether the matter was complained of was published on an occasion of qualified privilege the primary judge (at [44]) cited Bennette v Cohen , stating that Ipp JA's judgment provided a useful summary of the principles that must be applied by the Court when it is undertaking that task. Her Honour noted that Ipp JA listed the fact that the defamatory statement was volunteered as a relevant circumstance, then said (at [44] - [45]): "On that subject, McHugh J said in Bashford at [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.' 45 His Honour discussed the distinction with cases where the defendant is responding to a request and continued, at [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.'" 37Her Honour recognised (at [46]) that McHugh J's judgment in Bashford was a dissenting one, but observed that she did "not think that his dissent turned on a different view of the principle that the fact that the defamatory statement has been volunteered is a relevant factor " (emphasis added). In this respect she noted his Honour's statements had been cited with approval in Goyan v Motyka (at [86]) by Tobias JA (with whom Giles JA and Handley AJA generally agreed); in Lindholdt v Hyer [2008] NSWCA 264 (at [92]) by McColl JA; and in Bennettev Cohen by Ipp JA (at [21]) (with whose reasons on qualified privilege Campbell JA agreed) and by Tobias JA (at [145]).

[3]

The primary judgment: findings on the question of qualified privilege 38At trial the appellant submitted that the occasion of qualified privilege extended to all material in the matter complained of: primary judgment (at [60]). Alternatively, he argued there was a "narrower" occasion of qualified privilege, namely his interest in passing on information to Mr Ferguson and Mr Pappas about the respondent repeating misleading information concerning the appellant's proposal with respect to Souths. He submitted that if her Honour was satisfied only on the narrower basis, the balance of the information in the matter complained of which did not directly touch on the Souths' takeover issue was relevant to that occasion because it was the reason which aroused the appellant's concern: primary judgment (at [60]). 39The appellant's case was that the matter complained of was published on occasion of qualified privilege because there was the necessary reciprocity of interest between him and its recipients which warranted communicating its contents. He identified the following three matters as establishing his interest (primary judgment (at [47])): "1. Mr Holmes a Court's participation in the proposal to be voted on on 19 March 2006 and the campaign surrounding that proposal, including the fact that Mr Papaconstuntinos was a prominent and passionate opponent of the yes campaign. 2. The fact that Mr Holmes a Court obtained information as a result of the due diligence which, on its face, was highly suspicious and demanded to be checked. 3. The fact that Mr Holmes a Court had information that Mr Papaconstuntinos had engaged in misleading prospective voters." 40The appellant submitted at trial that Mr Ferguson had an interest in receiving the information in the matter complained of for the following reasons (primary judgment (at [48])): "1. The CFMEU were in effect stakeholders in Souths and the campaign because of their long association with that club. 2. Mr Ferguson had undertaken to Mr Holmes a Court not to take a position in the vote and invited Mr Holmes a Court to come back to him if he learned anything to the contrary. 3. The information in so far as it involved Mr Papaconstuntinos' son's employment may have involved Mr Papaconstuntinos' conduct as a CFMEU organiser. 4. Mr Ferguson was in a position to exert influence over Mr Papaconstuntinos' conduct in relation to the vote and the campaign. 5. Mr Ferguson was Mr Papaconstuntinos' employer and had therefore an interest in knowing the information in question. 6. He invited Mr Holmes a Court to contact him." The matters raised in 2 and 6 turned on a conversation between Mr Ferguson and the appellant in early 2006: primary judgment (at [49] - [51]). There appears to have been no controversy at trial that publication to Mr Pappas was on an occasion of qualified privilege. The primary judgment is silent as to that issue. The respondent has not raised it on appeal. 41The respondent at trial accepted that the appellant had an interest in conveying the information in the matter complained of due to his interest in the vote on the proposal to be held at the EGM and the campaign surrounding the proposal, but argued that Mr Ferguson had no correlative interest in receiving the information. The primary judge reached the opposite conclusion on each of those issues: primary judgment (at [62]). 42The primary judge first rejected the appellant's submission that the defamatory statements in the matter complained of were not volunteered, but had been made in response to an invitation Mr Ferguson made in the conversation in 2006 . While her Honour noted that Mr Ferguson had previously met with the appellant and assured him that the CFMEU would remain neutral in relation to the vote about the takeover, she did not accept that the CFMEU had, through Mr Ferguson, requested the information in the letter which "suggested otherwise": primary judgment (at [51] - [52]). 43The primary judge then turned to the issue of the recipients' interest in receiving the matter complained of. Her Honour rejected the appellant's submission that the CFMEU was a "stakeholder" in Souths: primary judgment (at [54]). She accepted Mr Ferguson's evidence to the contrary: that "members of the CFMEU who took an interest in the Leagues Club did so in their personal capacity, not as spokespersons for the union." Accordingly she rejected (primary judgment (at [55])) the appellant's contention that Mr Ferguson had a special interest in receiving the matter complained of because the "CFMEU were in effect stakeholders in Souths and the campaign because of their long association with that club". 44Her Honour was also of the view (at [55]) that the proposition that Mr Ferguson had "undertaken" to the appellant not to take a position in the vote overstated the effect of the conversation between the two men. She found that the CFMEU did not have any special interest in receiving information about the Souths' campaign whether on account of a long association with the club, or as a result of anything said at the meeting between Mr Ferguson and the appellant. 45After referring again to the need to examine all of the circumstances of the case, the primary judge said: "57 The principal subject of the letter was the conduct of Mr Papaconstuntinos, as to which the letter was pitched as a formal complaint. The gist of the complaint was that Mr Papaconstuntinos was spreading misinformation about Mr Holmes a Court's bid for a controlling interest in the Football Club. In apparent support of the complaint, or to explain the conduct complained of, Mr Holmes a Court provided the information about the former employment of Mr Papaconstuntinos' son, and ventured to speculate some past misuse of funds on the part of Mr Papaconstuntinos. 58 As I have already indicated, in my view the letter displays careful composition. The publisher, Mr Holmes a Court, is a well-known Sydney businessman. I have regard to the fact that the letter was written on the letterhead of Whitebull Holdings Pty Ltd, noting Mr Holmes a Court's contention that the statement was made in furtherance or protection of his interest in the South's proposal (and, by implication, the interest of that company in the proposal). 59 I accept that the letter was published only to a small number of recipients, three of whom were officers or employees of the CFMEU. All of those are factors consistent with the occasion being one to attract the cloak of qualified privilege . (emphasis added) 46The primary judge then returned to the question whether the appellant had "an interest that justified making the defamatory publication and whether the recipients had an interest in receiving it". 47Her Honour referred to her earlier findings that Mr Ferguson had not requested information on the subject of the conduct of the campaign and that she did not think the CFMEU had any special interest in receiving information about the campaign on account of a long association with the club. She concluded (primary judgment (at [63])) that there was no occasion for Mr Ferguson to receive information about the alleged misinformation that the appellant believed the respondent was spreading in relation to the proposal. 48Her Honour accepted (primary judgment (at [64])), however, that Mr Ferguson and Mr Parker had an interest in receiving the information in so far as it concerned the respondent's conduct as a CFMEU officer and that they also had an interest as his employers. She rejected the respondent's submission that "the information held by Mr Holmes a Court did not 'hit the mark' of being worth communicating to Mr Ferguson". She found (primary judgment (at [65])) that "at the time the information became available to Mr Holmes a Court, it was ... such as to arouse suspicion in a reasonable mind", then said: "66 Mr Papaconstuntinos was an official of the CFMEU. As its name suggests, that is the union for workers in the construction industry. The information uncovered by Mr Holmes a Court was that Mr Jamie Papaconstuntinos was being paid a salary well in excess of the usual salary for coaches in the lower divisions at the South Sydney Football Club. Further, Mr Shane Richardson, Chief Executive Officer of the Football Club, had told Mr Holmes a Court that, when he first learned about the salary being paid, and questioned it, he was told not to worry because the salary was to be met by sponsors of the club. The sponsors were construction companies, who may be assumed to have a motive for keeping the construction workers' union happy. In my view, those facts were inherently suspicious. 67 The test is whether the recipients of the letter had an interest in receiving that information on the assumption that it was true. Plainly, if true, the misuse of funds suspected by Mr Holmes a Court on account of those events warranted consideration by the secretary of the CFMEU ." (emphasis added) 49The primary judge then turned to the issue of the timing of publication of the matter complained of. On this subject her Honour said: "68 What I find more difficult to accept is that Mr Holmes a Court had an interest that justified his publishing information on that subject to Mr Ferguson at the time that he did . I accept, as submitted by Mr McClintock, that it is not necessary for the defendant to establish that the publisher and the recipient had a common interest arising out of the same set of circumstances. The interests of the parties can be quite different in kind, but the occasion may still be privileged: Aspro Travel v Owners Abroad Group [1996] 1 WLR 132 at 143; cited in Gatley on Libel and Slander (11 th ed) at 14.42. 69. The difficulty I have is that I do not think there was a pressing need for Mr Holmes a Court to protect his interests (or those of Mr Crowe or Whitebull Holdings Pty Ltd) by volunteering the defamatory information about the events surrounding the employment of Mr Jamie Papaconstuntinos several years earlier (or expressing his "concerns" in relation to that information). 70 As already indicated, I accept, as submitted by Mr McClintock, that the information obtained as a result of the due diligence conducted by Mr Holmes a Court and his team was, on its face, highly suspicious. However, those were events which had emerged, and been dealt with by the club, some time earlier . The premise of Mr Holmes a Court's communication of those events to Mr Ferguson was that, in his mind, they afforded the explanation for Mr Papaconstuntinos' vigorous opposition to the proposal and the misinformation that Mr Papaconstuntinos had been spreading about it (according to Mr Holmes a Court). That, in my view, was a tenuous connection that afforded no basis for volunteering information on the subject to Mr Ferguson . I do not accept that Mr Papaconstuntinos' campaign against the bid, even if he was spreading what was perceived by Mr Holmes a Court as misleading information, was 'inexplicable' unless one considered the circumstances surrounding the employment of Mr Jamie Papaconstuntinos. An objective bystander, with no personal investment in the bid, would readily have accepted that the two camps simply had vastly different perspectives as to the merits of the bid and the best interests of the Rabbitohs. 71 Further, I do not accept that the publication of those defamatory statements was warranted in furtherance or protection of Mr Holmes a Court's interest. The letter sought Mr Ferguson's 'assistance in checking the facts' presented, but there was no practicable opportunity for that to occur between receipt of the letter on the Friday before the vote and the Sunday when the vote occurred. 72 Accordingly, adopting the words of Parke B in Toogood v Spyring cited in Bashford at [54], I do not think the publication of the defamatory statements as to Mr Holmes a Court's concerns about misuse of funds was fairly warranted by any reasonable occasion or exigency. For those reasons, I am not satisfied that the letter was published on an occasion of qualified privilege." (emphasis added) 50Although, as I have said, the respondent does not challenge the primary judge's finding that he failed to establish malice, some of the evidence her Honour considered in reaching that conclusion should be set out. It explains the appellant's purpose in sending the matter complained of, reasons which assumed importance in the submissions on appeal. 51The primary judge was satisfied (primary judgment (at [80])) that the appellant held an honest belief in the truth of what he published. She extracted (primary judgment (at [78])) a passage of his cross-examination on this issue as follows: " 'Q. I put it to you squarely it was the case, wasn't it, that in writing the letter you were embarking on a matter of tit for tat, weren't you? A. No, absolutely not. Q. Are you saying that you only sent the letter to Mr Ferguson because of the misinformation you believed Mr Papa was spreading? A. Absolutely. That's what we were trying to do. We were trying to stop him spreading information which was incorrect and misleading, leading up to the vote. Q. And that was the sole basis for you sending this letter, wasn't it? A. I think so. I don't think there is anything else that it was about. Q. And it had absolutely nothing to do with the belief on your part that Mr Papa had benefited personally from funds that were meant to go to the football club, did it?' [After an objection, the cross-examination continued] 'Q. It is the case, isn't it, Mr Holmes a Court, that it was never a reason for you sending a letter to Mr Ferguson that you had any belief that Mr Papa had personally benefited from funds meant for the football club? A. On - on the contrary. It's - that is why we thought he was going to the extraordinary lengths that he was going to, to prevent two people putting money into the football club. We couldn't understand how - what was going on and why he was working so hard to prevent money going in. We thought it must have been, as I believe I have said before, to prevent us getting control, for getting us - to prevent us getting to have a deeper look inside the - inside the organisation and the way it had run and the way money had moved around the club. Q. Your sole purpose in sending the matter complained of was to damage Mr Papa personally to assist your yes campaign, wasn't it? A. No. It was to stop him making telephone calls. It couldn't have done any damage on a Friday to Mr Papa that would have helped our campaign. We were only trying to stop the misinformation being spread. Q. And that purpose had nothing to do with any belief on your part that he had personally benefited from funds meant for the football club? A. Sorry if I wasn't clear before when I answered that question but we believed that the reason that he was making these telephone calls was because he had personally benefited from football club funds or sponsor funds and he did not want us to get in control of the football club and either change the way it operates or investigate what had happened in the past. ' " (emphasis added) 52A further passage was extracted (at [86]) when her Honour considered the respondent's argument that the appellant's purpose was to discredit the respondent: " 'Q. You sent the letter to Andrew Ferguson using the information you had or say you had on 20 December 2005 for the purpose of discrediting Tony Papa; isn't that correct? A. Okay, I'll see if I understand the question. I sent the letter on 17 March 2006 for the purpose of discrediting Tony Papa? Is that the question? Q. It was, yes? A. No, I sent the letter to Andrew Ferguson to try and get Andrew Ferguson to understand that he should do something about investigating these telephone calls that were taking place and hopefully bringing them to an end.' " (emphasis added) 53The appellant's evidence that he was trying to get Mr Ferguson to stop the respondent making his telephone calls was not challenged in cross-examination. While her Honour confessed to having "some difficulty understanding what basis [the appellant] had for expecting Mr Ferguson to intervene to 'stop the calls' within the short time frame between the sending of the letter and the Extraordinary General Meeting", in the absence of cross-examination she concluded it was not appropriate for her to draw the inference, in substance, that the appellant's purpose in publishing the mater complained of was to discredit the respondent: primary judgment (at [98], [100]).

[4]

Issues on Appeal 54The grounds of appeal are: "1. Her Honour erred in rejecting the defence of common law qualified privilege. 2. Her Honour erred in finding that the fact the publication was voluntary was a significant if not determinative factor in determining the issue of qualified privilege. 3. Her Honour erred in finding that the appellant did not have the requisite interest to communicate information about the respondent's son as there was no pressing need to do so. 4. Her Honour erred in finding that the appellant did not have the requisite interest to communicate information concerning the respondent's alleged spreading of misinformation. 5. Her Honour erred in finding that the recipients did not have the requisite interest in receiving information concerning the respondent's alleged spreading of misinformation." 55The respondent has filed a notice of contention seeking to support the primary judgment on the basis that the primary judge correctly held that the appellant had failed to prove the reciprocity of interest necessary to make good his defence of qualified privilege, irrespective of whether McHugh J's statement of principle in Bashford correctly stated the law. Appellant's submissions 56Mr B R McClintock of Senior Counsel, who appeared for the appellant on appeal and at trial with Mr R W Potter, submitted that the matter complained of was made in furtherance or protection of the appellant's interests and that its recipients had a corresponding interest in receiving it in the following respects (as set out in the written submissions): "a. interest of the appellant in conveying information concerning the conduct of the respondent's son; b. interest of the appellant in conveying information concerning the conduct of the respondent in repeating misleading information; c. interest of the recipients in receiving information concerning the conduct of the respondent's son; d. interest of the recipients in receiving information concerning the conduct of the respondent in repeating misleading information." 57Mr McClintock expanded on the subject of the interests said to sustain a finding of qualified privilege in oral submissions which bore more resemblance to the case advanced at trial. First, he contended that the Souths' bid was analogous to an election campaign in which the respondent was one of the appellant's principal opponents in the contest as to who would control Souths. The appellant had an interest in gaining control of Souths and the respondent had an interest in opposing that eventuality. Secondly, he pointed to what he said was the appellant's recent discovery of the respondent's misleading conduct in relation to that campaign - a discovery which put a different complexion on the information about the respondent's son of which he had become aware during the due diligence process. Thirdly, he contended the appellant had an interest in trying to have the respondent's misleading conduct stopped because of the campaign in which he was engaged to gain control of Souths. Fourthly, he contended there was no rational reading of the matter complained of other than that the appellant wanted to stop the respondent spreading misleading information in relation to the campaign. Finally, in what he described as an independent and stand-alone point, Mr McClintock submitted that Bashford established that the mere possession of information without anything else was sufficient to found an interest if the information was given to someone who had an interest in receiving it - and that that analysis applied to the appellant. 58Mr McClintock submitted that, properly understood, the primary judge found against the appellant on the narrow basis that he had no interest in publishing the matter complained of because there was no pressing need at the time to do so, notwithstanding that her Honour accepted the recipients had an interest in receiving the matter complained of - despite there being no pressing need to convey it to them. 59Mr McClintock argued that McHugh J's dissenting judgment in Bashford (at [73]) insofar as it proposed that "[o]rdinarily 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" was "diametrically at odds" with the majority view in that case (at [25]) that an occasion can be privileged "where both maker and recipient of the matter complained of have voluntarily undertaken the reciprocal duties which make the occasion privileged." He contended that McHugh J's dissenting judgment in Bashford should not be followed. He also submitted it was not supported by the authorities to which McHugh J referred. 60Mr McClintock's submissions as to the relevance of the fact a defamatory statement had been volunteered tended to fluctuate between extremes. At times he argued that fact was never relevant in determining a defence of qualified privilege. At others he urged that even if it was a relevant factor, McHugh J's proposition that the fact the defendant volunteered defamatory matter was likely to be decisive against a finding of qualified privilege was not supported by authority. 61Mr McClintock argued that, in any event, it was wrong to ask whether a defamatory publication was volunteered. Rather, the question was whether the defendant had an "interest" in communicating the defamatory publication at the time it was made. If there was such an interest, the fact the statement was volunteered was irrelevant. If there was no interest, there was no occasion of qualified privilege. 62Mr McClintock contended that the notion of a "pressing need" introduced an uncertain temporal issue as to when such a need existed and also whether an existing interest could expire and in what circumstances, as to which there was little or no satisfactory authority. He argued that the better view was that delay, if found, went to malice not interest. 63Mr McClintock argued, in the alternative, that even if it was relevant that the communication was voluntary and that it must be necessary that there be a pressing need to communicate the defamatory allegation, the fact that the appellant had had prior knowledge of the information relating to Mr Jamie Papaconstuntinos did not mean that there was no pressing need to protect his interests at the time of publication. Rather, he contended the appellant had a pressing need to protect his interest by securing a favourable vote at the EGM - two days later. It was in his interest to stop the respondent communicating the misleading information prior to that meeting. 64Mr McClintock further contended that i f the primary judge had not been influenced by the issue of voluntariness and pressing need, her Honour would have found the appellant had an interest in publishing the corruption allegations which, coupled with the unchallenged findings that the CFMEU had an interest in receiving those allegations, meant the defence of qualified privilege was established in that respect. 65Next Mr McClintock submitted that given that the appellant believed the corruption allegations explained why the respondent was spreading misinformation about the bid which he believed Mr Ferguson could stop, he also had an interest in communicating the misleading allegation. Alternatively he argued that the misleading allegation was germane and reasonably appropriate to the occasion of qualified privilege so as to attract protection. He argued that the misleading allegation was inextricably linked with the corruption allegations. He pointed out that while the primary judge found (primary judgment (at [70])) the connection to be tenuous for the purpose of creating an interest in the recipients, her Honour did not find they were completely unconnected. 66Finally, insofar as the appellant had submitted on the leave application that the Court of Appeal decisions to which the primary judge referred (primary judgment (at [46])) were wrongly decided, Mr McClintock adopted the analysis of those decisions in Megna v Marshall [2010] NSWSC 686 (at [153] - [166]) and contended that the voluntariness/pressing need proposition was not a part of the central findings in any of them. He also drew the Court's attention to two other cases - Mundine v Brown (No 6) [2010] NSWSC 1285 and Ryan v Premachandran [2009] NSWSC 1186, in which he said judges of the Common Law Division had applied the three Court of Appeal decisions. He did not make any submission as to whether or not those two cases misapplied the voluntariness principle identified by McHugh J.

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Respondent's submissions 67Mr T K Tobin of Queens Counsel, who appeared for the respondent on appeal but not at trial, with Mr R K Weaver, submitted that the primary judge correctly concluded that the appellant failed to prove the existence of the necessary reciprocity of interest to establish a defence of qualified privilege at common law. 68Mr Tobin contended that the primary judge's judgment in the respondent's favour was sustainable whether or not the concept of voluntariness her Honour extracted from McHugh J's reasons in Bashford was good law. He accepted that her Honour correctly concluded that the recipients of the matter complained of had no interest in the misleading allegation, but did have an interest in the corruption allegations. However he argued that if the CFMEU did not have an interest in the Souths campaign, there could be no reciprocity of interest - no matter what the appellant's interest was. 69Mr Tobin submitted that in the light of the primary judge's conclusion that the CFMEU did not have a legitimate interest with respect to the conduct of the respondent in Souths' affairs, the appellant had to prove that he had a legitimate interest in communicating the corruption allegations in order to have Mr Ferguson stop the respondent's telephone campaign against the yes vote. 70Mr Tobin argued that the primary judge correctly concluded that the appellant had not proved that interest having regard to the lapse of time since the respondent's son was employed by Souths (primary judgment (at [69])), the fact Souths had dealt with those events some time earlier (primary judgment (at [70])), the tenuous connection between the misleading allegation and the corruption allegations (primary judgment (at [70])) and the fact there was no practicable opportunity for Mr Ferguson to check the facts between when the letter was sent and the EGM: primary judgment (at [71]). 71While he accepted that the primary judge referred to volunteering of the information and pressing need, Mr Tobin submitted that those factors were not decisive in her rejection of the defence. 72Mr Tobin submitted that, properly understood, Gleeson CJ, Hayne and Heydon JJ in their joint judgment and Gummow J in Bashford , found that the defendant in that case had a duty to publish the matter complained of and that its recipients had an interest in the information it contained. On that approach, he argued that the passages in McHugh J's dissenting judgment dealing with the volunteering of defamatory matter were not at odds with that conclusion. He further argued that McHugh J did not apply an absolute test that, absent pressing need, volunteered statements were not privileged - only that it was "an important - often decisive - factor": Bashford (at [74]). 73In any event, Mr Tobin submitted that the principle with regard to voluntary statements was long established in Australian jurisprudence and was upheld by the majority in Bashford as being a relevant factor in determining an issue of qualified privilege. 74Mr Tobin further submitted that because the primary judge found there was no pre-existing reciprocity of interest between the appellant and Mr Ferguson (the CFMEU) in relation to the misleading allegation, the appellant had to prove something more than a "tenuous link" between the vote to be taken at the EGM and the corruption allegations. 75Finally, Mr Tobin contended that the primary judge's finding that there was only a "tenuous link" between the corruption allegations and the respondent's opposition to the bid should be understood as a finding that the appellant had not established the requisite interest to convey the corruption allegations. Nor, he contended, should the primary judgment be understood as finding that any interest the appellant might have about the corruption allegations had expired. Rather the judgment should be understood as meaning the appellant had not established that he had an interest in communicating the corruption allegations "on this occasion". 76Because the appellant was unsuccessful in linking the two kinds of defamatory allegations, Mr Tobin submitted the defence of qualified privilege should fail irrespective of the issue of voluntariness. This appeared to be a submission that the misleading allegation could not be said to be "germane and reasonably appropriate to the occasion" of the publication of the corruption allegations.

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The rationale for the defence of qualified privilege There is no debate about the broad principles of the defence of qualified privilege. They can be briefly stated, albeit with emphasis on the underlying rationale for the privilege. What should be emphasised at the outset is that "'the circumstances that constitute a privileged occasion can themselves never be catalogued and rendered exact' [and] ... 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'": Bashford (at [10]) per Gleeson CJ, Hayne and Heydon JJ (with whose reasons on qualified privilege Kirby J agreed (at [178]); (at [139]) per Gummow J; see also Guise v Kouvelis [1947] HCA 13; (1947) 74 CLR 102 (at 116) per Dixon J. Griffith CJ (with whom Barton J agreed) spoke to like effect in Howe & McColough v Lees [1910] HCA 67; (1910) 11 CLR 361 (at 369), saying "[i]t is obviously impossible to lay down a priori an exhaustive list of such occasions. The rule being founded upon the general welfare of society, new occasions for its application will necessarily arise with continually changing conditions." 77McHugh J also recognised in Bashford (at [72]) that "the categories of duty are not closed [and] [t]he law will recognise a duty whenever 'the great mass of right-minded men in the position of the defendant would have considered it their duty, under the circumstances, [to make the communications]'". He too, as the primary judge acknowledged, emphasised (at [63]) the necessity to "consider all the circumstances and ask whether this publisher had a duty to publish or an interest in publishing this defamatory communication to this recipient." (emphasis in original) 78As Parke B explained in Toogood v Spyring (1834) 1 Cr M & R 181 (at 193); 149 ER 1044 (at 1049-1050) qualified privilege protects: "...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 ." (emphasis added) 79The cases in which Parke B's statement has been applied are legion. As the majority (French CJ, Gummow and Hayne JJ) in Aktas v Westpac Banking Corporation Limited [2010] HCA 25; (2010) 84 ALJR 551 (at [15]) recognised, it is the "generally accepted statement of principle". It was quoted in the joint reasons (Gleeson CJ, Hayne and Heydon JJ) in Bashford (at [9]) with the observation, "[r]eciprocity of duty or interest is essential" (see also Gummow J (at [136]), a proposition to which I will return. 80The doctrine of qualified privilege, as Evatt J (with whom Rich and McTiernan JJ agreed) observed in Telegraph Newspaper Co Ltd v Bedford [1934] HCA 15; (1934) 50 CLR 632 (at 654), has "only been developed in comparatively modern times, Lord Mansfield being largely responsible"; see also Bashford (at [123]) per Gummow J. Evatt J also noted ( Telegraph Newspaper Co Ltd v Bedford (at 657)), that in London Association for Protection of Trade v Greenlands Ltd [1916] 2 AC 15 (at 22), Lord Buckmaster observed: "...I do not think that any of the subsequent explanations, or definitions [since Toogood v Spyring ], have made any variation in the principle thus enunciated, nor added anything by way of explanation to this clear exposition of the law. The long list of subsequent authorities to which your Lordships were referred do nothing but afford illustrations of the different circumstances to which this principle may be applied." 81The rationale for the defence of qualified privilege was discussed in Aktas (at [22]) , where the majority said (footnotes omitted): "In Justin v Associated Newspapers Ltd , Walsh JA said that the 'broad principle' underlying qualified privilege is that occasions exist in which it is desirable as a matter of public policy that freedom of communication should be given priority over the right of the individual to protection against loss of reputation. It also has been said that the categories (if there be utility in a system of categories) of occasions of qualified privilege are not closed and cannot be rendered exact. Cases of reciprocity, or as Griffith CJ put it, 'community of interest', supply a recognised category, which in turn has an indeterminate reference. The limits of that range of reference in a given case are to be placed by regard to the 'broad principle' identified by Walsh JA and to the remarks of Dixon J in Guise v Kouvelis as follows: 'But the very width of the principles governing qualified privilege for defamation makes it more necessary, in deciding how they apply, to make a close scrutiny of the circumstances of the case, of the situation of the parties, of the relations of all concerned and of the events leading up to and surrounding the publication." (emphasis added) 82Dixon J's judgment in Guise v Kouvelis was a dissenting one but, as the reference in Aktas indicates, it commands acceptance. It was cited in Bashford (at [139]) by Gummow J (who formed part of the majority) and by McHugh J (at [73]) in dissent. As Gummow J pointed out in Bashford (at [141]), the necessity in cases where a defence of qualified privilege is raised, to focus closely on the circumstances of each case may lead to the consequence (as illustrated in his Honour's view by Guise v Kouvelis ) that "different minds, whilst informed of the legal principles, nevertheless may differ as to the outcomes in particular cases". Evatt J noted statements to like effect in Telegraph Newspaper Co Ltd v Bedford (at 657).

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The notion of duty and interest 83There is no bright line rule separating the concepts of duty and interest to which Parke B referred in Toogood v Spyring . As Griffith CJ (with whom Barton J agreed) said in Howe & McColough v Lees (at 368 - 370): "The words 'some social or moral duty' and 'on the ground of an interest in the party making or receiving it' have been sometimes taken as laying down a sharp line of demarcation between what is spoken of as 'duty' and what is spoken of as 'interest.' But when the real principle on which the rule is founded is understood it becomes apparent that the two matters often overlap. The words of Parke B. in Toogood v. Spyring : -'If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society' - supply the key. The reference to society does not mean that the person who makes the communication is under any obligation to publish, and is justified in publishing, it to the public at large, but that the interests of society in general require that a communication made under such circumstances to the particular person should be protected. The term 'moral duty' is not used in a sense implying that a man who failed to make the communication under the circumstances would necessarily be regarded by his fellows as open to censure, but in the sense implying that it was made on an occasion on which a man who desired to do his duty to his neighbour would reasonably believe that he ought to make it. ... With regard to the privilege founded upon what is called interest it is contended that the person who makes the communication and the person to whom it is made must have a common interest. 'Community of interest' is, I think, a more accurate term . ... The term 'community of interest' does not connote a joint pecuniary interest in property. Any legitimate object for the exercise of human faculties pursued by several persons in association with one another may be sufficient to establish community of interest. Again: 'interest' does not mean an interest in the particular subject matter as to which the communication is made, but an interest in knowing the fact communicated, in other words, an interest in the subject matter to which the communication is relevant, as for instance the solvency of a probable customer ." 84O'Connor J ( Howe & McColough v Lees (at 377)) also observed: "The interest relied on as the foundation of privilege must be definite. It may be direct or indirect, but it must not be vague or unsubstantial. So long as the interest is of so tangible a nature that for the common convenience and welfare of society it is expedient to protect it, it will come within the rule." 85Higgins J ( Howe & McColough v Lees (at 396)), also explained the nature of the "interest" involved, and matters of timing, as follows: "What kind of interest is required? It certainly is not any proprietary interest; it need not even be any pecuniary interest. In Whiteley v. Adams a rector used defamatory words of a curate, not of his parish, to another curate, and to a lady; and the occasion was privileged, though there was no money or property possibly involved. In Clark v. Molyneux a vicar told his curate what he had heard about another curate, and asked his advice what to do. There was no pecuniary interest; and yet there was privilege. In Harrison v. Bush the statement was made to the Secretary of State with regard to a justice of the peace, and the statement was privileged, on the ground of the interest of the Queen in having worthy justices. In Child v. Affleck a lady wrote about the conduct of a discharged servant to persons who had recommended the servant to her, and the statement was held to be privileged. It is urged, however, that no dealing was imminent or in contemplation between Lees and any of the other auctioneers. I cannot see why this fact should prevent the communication from being 'fairly warranted by a reasonable occasion or exigency.' The occasion may be reasonable, even if a dealing is not actually proposed. " (emphasis added) ... (at 398) The truth seems to be that the 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." (emphasis added) 86In all of the cases to which Higgins J referred as having been successfully defended on the basis of qualified privilege, the defamatory statement was volunteered. 87The duty to convey the information is not confined to legal duties which may be enforced by curial remedy, "but must include moral and social duties of imperfect obligation": Bashford (at [137], [145]) per Gummow J; see also Ronald v Harper [1910] HCA 43; (1910) 11 CLR 63 (at 74) per Griffith CJ; Aktas (at [68]) per Heydon J citing Harrison v Bush (1855) 5 El & Bl 344 (at 349); 119 ER 509 (at 512) per Lord Campbell CJ; Watt v Longsdon [1930] 1 KB 130 (at 144) per Scrutton LJ ("moral or social duties"). 88In Watt v Longsdon (at 144) in the passage to which Heydon J referred, Scrutton LJ discussed the difficulty of determining the issue of qualified privilege when the question was whether the defendant had a moral or social duty to publish. His Lordship said: "As to legal duty the judge should have no difficulty; the judge should know the law; but as to moral or social duties of imperfect obligation, the task is far more troublesome. The judge has no evidence as to the view the community takes of moral or social duties. All the help the Court of Appeal can give him is contained in the judgment of Lindley LJ in Stuart v. Bell [1891] 2 Q.B. 341, 350: 'The question of moral or social duty being for the judge, each judge must decide it as best he can for himself. I take moral or social duty to mean a duty recognized by English people of ordinary intelligence and moral principle, but at the same time not a duty enforceable by legal proceedings, whether civil or criminal.'" 89The duty or interest must exist in fact. A mere belief in its existence is not sufficient: Adam v Ward [1917] AC 309 (at 334); see also Bonette v Woolworths Ltd (1937) 37 SR (NSW) 142 (at 148) per Jordan CJ.

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Reciprocity of interest or duty 90According to Scrutton LJ ( Watt v Longsdon (at 146)) , the proposition that "both parties, the writer and the recipient, must have a corresponding interest or duty" was first articulated by Lord Campbell CJ in Harrison v Bush (at 348) who, when giving the judgment of the Court of Queen's Bench, accepted a principle stated by counsel as: "A communication made bona fide upon any subject matter in which the party communicating has an interest, or in reference to which he has a duty, is privileged, if made to a person having a corresponding interest or duty, although it contain criminatory matter which, without this privilege, would be slanderous and actionable." 91According to Scrutton LJ ( Watt v Langsdon (at 147)): "...except in the case of communications based on common interest, the principle is that either there must be interest in the recipient and a duty to communicate in the speaker, or an interest to be protected in the speaker and a duty to protect it in the recipient. Except in the case of common interest justifying intercommunication, the correspondence must be between duty and interest. There may, in the common interest cases, be also a common or reciprocal duty. It is not every interest which will create a duty in a stranger or volunteer." 92Because reciprocity of interest or duty is essential to a claim of qualified privilege at common law, ordinarily that defence only lies in relation to limited publications: Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 (at 570, 572). As Callinan J observed in Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1 (at [215]); see also Telegraph Newspaper Co Ltd v Bedford (at 658 - 660), prior to Lange , that proposition had held good in all but a "few exceptional cases" - to which "exceptional" class, I would observe, Bashford might now be added. As the primary judge recognised, however, the matter complained of fell into the unexceptional class - having been published, relevantly, only to three people all of whom worked for the CFMEU, the respondent's employer. 93No doubt in recognition of Parke B's final proposition in Toogood v Spyring (1 Cr M&R 181 (at 193); 149 ER 1044 (at 1050)) that "the law has not restricted the right to make [such publications] within any narrow limits", Dixon J said in Mowlds v Fergusson [1940] HCA 38; (1940) 64 CLR 206 (at 214 - 215) that "[w]here the defamatory matter is published in ... protection of an interest ..., the conception of a corresponding duty or interest in the recipient must be very widely interpreted". After noting that Parke B in Toogood v Spyring spoke of communications "fairly made by a person ...in the conduct of his own affairs, in matters where his interest is concerned", Dixon J added, "...and demands no community, reciprocity or correspondency either of interest or duty". His Honour repeated these statements in Guise v Kouvelis (at 125).

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Voluntary communications 94The primary judge (at [44] - [46]) was strongly influenced by McHugh J's statements in Bashford in respect of a voluntarily published statement, as well as the fact his Honour's remarks had been referred to in this Court. Her Honour expressed the view (at [46]) that although "McHugh J dissented in the result, I do not think that his dissent turned on a different view of the principle that the fact that the defamatory statement has been volunteered is a relevant factor". That statement is true, as far as it goes. 95I analysed Bashford in Linholdt (at [85] - [93]) in terms which do not require repetition. Suffice it to say that the majority decision in Bashford does not stand for the proposition for which Mr McClintock contended, that voluntariness is never a relevant factor in determining a question of qualified privilege. Rather, the joint judgment recognised ( Bashford , at [25], see Linholdt (at [89])) that "[t]here will be cases where an occasion is privileged but where both maker and recipient of the matter complained of have voluntarily undertaken the reciprocal duties which make the occasion privileged." Their Honours were careful ( Bashford at [26]) to distinguish the facts of that case from other paid (and sub silentio, volunteered) publications on the basis of "the narrow focus of both its subject matter and its readership [those with an interest in workplace health and safety]", and, too, from "the general news media." 96Two matters did clearly separate the majority approach in Bashford from McHugh J and - in my view - were the matters on which the primary judge's decision adverse to the appellant in large part rested. 97One was McHugh J's statement that "[o]rdinarily 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": Bashford (at [73]) - the question of "pressing need" was a matter to which the majority made no reference. 98The other was his Honour's further, and clearly related, view that, absent immediate danger or harm to the person or injury to property, the fact the defendant volunteered the statement was "an important - often decisive - factor in determining whether the occasion was privileged": Bashford (at [74], [77], [81], [94]). This might be contrasted with his Honour's statement in Stephens v West Australian Newspapers Ltd [1994] HCA 45; (1994) 182 CLR 211 (at 266) that "[t]he officiousness of the person publishing the information can never be decisive against the existence of an occasion of qualified privilege, although it may be relevant in determining whether there was a duty to publish to the world at large." 99Although both matters were expressed in McHugh J's dissenting reasons, they require careful scrutiny. McHugh J's reputation as an expert in the law of defamation cannot be gainsaid. Dissenting opinions, it has been said, can sometimes take on a life of their own - even, sometimes, becoming more "authoritative" than the precedent itself: N Duxford, The Nature and Authority of Precedent , (2008) Cambridge University Press at 62, footnote 19, citing Justice Holmes's dissent in Lochner v New York 198 US 45 (1905). This is particularly the case where "the judge delivering the opinion is a renowned expert in the relevant area of law": ibid . I have already referred to the authority Dixon J's dissenting opinion in Guise v Kouvelis has attained. Another recent illustration can be seen in Aktas v Westpac Banking Corp Ltd (No 2) [2010] HCA 47; (2010) 85 ALJR 302 (at [6]) where the majority (French CJ, Gummow and Hayne JJ) cited Mason CJ's dissenting reasons in Autodesk Inc v Dyason [No 2] [1993] HCA 6; (1993) 176 CLR 300 (at 301 - 302) on the jurisdiction to reopen a judgment, observing that the fact his Honour dissented in the result did not deny the accuracy of the propositions he advanced. 100Sir Rupert Cross has said of the exercise of discerning the ratio decidendi , "perhaps we should not make a shibboleth of any requirement that there may be in this context that dissenting judgments should be disregarded; they may at least contain weighty dicta": Precedent in English Law , 4th ed (1991) Clarendon Press Oxford at 92 cited by Gummow and Hayne JJ in Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166 (at [206]). However, it would not be proper to seek to extract a binding authority from an opinion expressed in a dissenting judgment: Federation Insurance Ltd v Wasson [1987] HCA 34; (1987) 163 CLR 303 (at 314) per Mason CJ, Wilson, Dawson and Toohey JJ. Nevertheless, "there is force in the statement that 'from the realistic point of view, we are not sure of the ratio of a decision until we can discover its reception and its treatment by subsequent cases'": Jones v Bartlett (at [206]) per Gummow and Hayne JJ, citing George Paton and Professor Sawer, " Ratio Decidendi and Obiter Dictum in Appellate Courts " (1947) 63 Law Quarterly Review 461, 480.

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The challenged Court of Appeal authorities 101Recognition of McHugh J's expertise in the defamation field is seen, in my view, in the decisions of this Court referred to earlier in these reasons in which his Honour's reasons in Bashford have been cited, which the appellant suggests should be overruled. 102Goyan v Motyka concerned defamatory statements in a number of letters the defendants wrote to members of the Ukrainian community and in a book written in both Ukrainian and English in which some of the letters were reproduced. The primary judge had rejected a defence of common law qualified privilege. Tobias JA wrote the leading judgment dismissing the appeal, with which Giles JA agreed. Handley AJA generally agreed with Tobias JA's reasons and added some comments to which I will return. Tobias JA referred at length (at [86]) to McHugh J's judgment in Bashford (at [65], [71], [73] and [77]) noting his Honour "dissent[ed] on the facts" and that the parties in Goyan accepted that judgment as an accurate statement of the law on common law qualified privilege. For the reasons I have given it cannot, in my view with respect, be said that McHugh J only "dissent[ed] on the facts" in Bashford . Tobias JA (at [88]) regarded the fact that the defendants volunteered the defamatory information as a relevant factor in considering the defence of qualified privilege. His Honour also referred (at [92]) to the fact that two of the letters "referred to events relating to a third party which had occurred some six or seven years prior to their publication" which, in his view "...was stale and did not constitute a relevant matter of interest." His Honour did not treat either factor as "decisive" or uphold the rejection of the defence of qualified privilege on that ground alone. In his additional comments, Handley AJA remarked (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." 103Linholdt v Hyer concerned a publication called Cabbie , which was concerned with the taxicab industry and which was distributed free of charge by delivery to places like taxi depots and washes and LPG service stations frequented principally by taxi drivers: see [32]. The primary judge concluded the matters complained of were published on occasions of qualified privilege, but that the defendants were actuated by malice in their publication. On appeal I considered both the issue of qualified privilege and malice, finding the primary judge had erred in his decision on the former question but not on the latter. Giles JA and Basten JA agreed that the appeal should be dismissed, but only on the basis that the primary judge had not erred in his malice finding. As I have said I analysed Bashford, in the course of which I referred both to the joint reasons and the concurring judgments of Gummow and Kirby JJ and to McHugh J's dissenting judgment. I concluded (at [161]) that the primary judge had erred in finding the matter complained of was published on an occasion of qualified privilege because Cabbie was published to the general public and that Bashford was distinguishable on this basis. I also (at [162]) regarded it as significant "that the statements made in Cabbie were voluntary", observing that they were not published in any of the circumstances to which McHugh J referred to in Bashford (at [77]) and stating that Goyan had acknowledged that that was "almost a decisive factor against a conclusion of qualified privilege". My reconsideration of Goyan has not identified the source of that comment. To the extent that Bashford (at [77]) referred to the fact that "neither life is in immediate danger nor harm to the person or injury to property imminent" as "likely to be decisive against a finding of qualified privilege", I now accept that that is not supported by authority as will be apparent from the following discussion. However my reasons in Linholdt on the qualified privilege issue were not necessary to the resolution of that appeal. 104Bennette v Cohen concerned defamatory statements made at two public meetings. Both Ipp and Tobias JJA dealt with the issue of qualified privilege. Both cited the impugned passage from McHugh J's reasons in Bashford (at [73]); Ipp JA (at [21]); Tobias JA (at [145]). Campbell JA (at [206]) agreed with Ipp JA's reasons insofar as they concerned qualified privilege. After a review of many authorities about common law qualified privilege, Ipp JA (at [25]) summarised the propositions which, in his view, they supported. Point (d(iv)) quoted the second sentence in McHugh J's reasons in Bashford (at [73]), that "[o]rdinarily, a volunteered statement is 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". That being said, his Honour examined all the circumstances of the defamatory publications in reaching his conclusion (at [55]) that there was no reciprocity of interest between the defendant and the audiences at the meetings. One of the factors he considered relevant (at [60]) was the fact that the defendant volunteered the defamatory statements. Tobias JA also referred to that factor (at [151]). However neither Ipp JA nor Tobias JA treated the fact that the defendant's statements were volunteered as decisive of the issue of qualified privilege, nor was their timing of any relevance in their Honours' rejection of the defence. 105There is no doubt, however, that trial judges and members of the profession would be entitled to regard the imprimatur given to McHugh J's statement by judges of appeal as significant. That that is the case is illustrated not only by the decision under appeal, but by the cases to which Mr McClintock drew the Court's attention (see [66]) and more recently in Haddon v Forsyth [2011] NSWSC 123 (at [329]) where Simpson J rejected a submission based on the "pressing need" proposition. It would not be appropriate to do more than note those decisions. Whether or not they were correctly resolved should be determined in the event of any appeal. 106As is apparent from the foregoing analysis, however, none of the impugned Court of Appeal decisions turned on the application of McHugh J's dissenting judgment on either the issue of voluntariness or "pressing need" being a decisive factor. There is no occasion for any of them to be overruled.

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The authorities to which McHugh J referred 107In footnote (113) to his statement in Bashford (at [73]) that: "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" McHugh J cited Wyatt v Gore (1816) Holt 299; 171 ER 250; Brooks v Blanshard (1833) 1 C & M 779; 149 ER 613; Wenman v Ash (1853) 13 CB 836; 138 ER 1432; Dickeson v Hilliard (1874) LR 9 Exch 79; Thomas v Moore [1918] 1 KB 555; Guise v Kouvelis ; Andreyevich v Kosovich (1947) 47 SR (NSW) 357. 108There was, with respect, no express statement of principle as to pressing need in the terms his Honour articulated in the authorities he cited in that footnote. Although issues of timing were of some relevance in the older decisions, in none, in my view is it apparent that that issue was decisive in rejecting the defence of qualified privilege. 109Wyatt v Gore concerned a letter written by the Lieutenant-Governor of Upper Canada to the Attorney-General concerning the conduct of the plaintiff, the Surveyor-General of Upper Canada. The defendant had suspended the plaintiff from his employment in 1807. In 1809 the defendant sent what was described as a "pamphlet" to the Attorney-General which contained the alleged libel. It was said to have "charged [the plaintiff] with gross misconduct and an abuse of his powers as surveyor-general of the province". That document had not been generally circulated but was held by "the principal civil officers of the province" (Holt 299 (at [302]); 171 ER 250 (at 252)). Gibbs CJ appears to have dealt with the issue of the timing of the publication as going to malice (Holt 299 (at [305]); 171 ER 250 (at 253)). The pamphlet was not circulated until two years after the plaintiff's suspension and made no specific reference to the grounds of that suspension. It appears to have been accepted, however, that the pamphlet was published on an occasion of qualified privilege, but that the plaintiff had demonstrated that the defendant was actuated by malice in its publication. 110Brooks v Blanshard concerned an opinion the defendant expressed about the plaintiff, an engineer, in a letter to a third party C. The letter reflected on the plaintiff's conduct when he was an engineer to a railway company. The defendant and C were both shareholders in the railway company. A vacancy occurred in the situation of engineer to the Commissioners for the improvement of the River Wear - a position which was apparently the subject of election. The plaintiff became a candidate, but was unsuccessful in the first election. The matter complained of was written after that election and before another election was contemplated. The plaintiff was unsuccessful at the later election because of the publication of the matter complained of. The principal issue debated appears to have been whether the record which set out the libel could be varied to accord with the oral testimony of witnesses who gave evidence about its contents, the written record of the original having been destroyed. To the extent that the issue of qualified privilege was the subject of "reasons" (being only discernible from parenthetical judicial observations made in the course of argument), it is apparent that the court considered it relevant in rejecting the defence that the defendant had volunteered his opinion at a time when no election, at which presumably the plaintiff's qualities as an engineer could be debated, was contemplated: (1 C & M 779 (at [783]); 149 ER 613 (at 616 - 617)). Brooks v Blanshard comes closest to supporting Bashford (at [77]) as to the issue of voluntariness, but not as to the "pressing need" proposition. So far as my researches reveal, Bashford is the only case in which Brooks v Blanshard has been cited. 111Wenman v Ash concerned a letter the defendant wrote to the plaintiff's wife complaining in substance that the plaintiff had stolen goods from him while he was a tenant in their house. The defendant volunteered the matter complained of. The substantial debate in the case appears to have been as to whether there was any publication, counsel for the defendant having submitted that "the sending the letter to the plaintiff's wife, was like sending it to the plaintiff himself; for, husband and wife are for all legal purposes one", an argument the court rejected. The jury had found the defendant was not actuated by malice in publishing the matter complained. The argument as to qualified privilege appears to have failed not because the defendant was a volunteer, or for any reason connected to the timing of the publication but because the defendant "could not really and bon fide believe that [the plaintiff's wife] was the proper quarter to address himself to for the purpose of obtaining redress for his supposed grievance": per Jervis CJ (13 CB 836 (at [844]); 138 ER 1432 (at 1436)); Maule, Cresswell and Talfourd JJ agreeing. 112Dickeson v Hilliard concerned a publication two days after an election by the chairman of a candidate's committee and his election agent to the agent of a rival candidate, "certifying" that the rival candidate had been personally guilty of bribery. At the time of publication, the 21 days during which a petition might have been presented under the Parliamentary Elections Act 1868 (32 & 33 Vict. c 125) s 6 had not elapsed. There was no evidence that any such petition was in contemplation at the time of publication. The trial judge, Kelly CB, ruled as a matter of law that the matter complained of was not privileged, but left it to the jury to say whether it was as a matter of fact and directed them if they thought there was and found no express malice to find for the defendant. The jury found for the plaintiff. One of the defendants moved for a new trial on the ground of misdirection on the issue of privilege. It is apparent that the fact that the matter complained of was volunteered and its timing was relevant to the court's determination that it was not published on an occasion of qualified privilege. However neither factor could be said, in my view, to have been decisive. Rather it was of great significance to the court, in my view, that the person to whom the matter complained of was addressed had no jurisdiction either to punish or inquire into the bribery of which the plaintiff was accused: see (at 82, 83) per Kelly CB; (at 85) per Pigott B; (at 85) per Pollock B. 113Thomas v Moore concerned statements made by six members of the Associated Society of Locomotive Engineers and Firemen about the plaintiffs, eight members of the National Union of Railwaymen. In June 1915 the plaintiffs and defendants, as representatives of their respective unions, met representatives of railway companies and sought a war bonus of 5s a week for railwaymen, a request which was not then granted. The war bonus was granted, at a later meeting in October the same year. After the bonus was granted the defendants made speeches at meetings of railwaymen in substance saying that but for the plaintiffs' conduct at the June meeting, the bonus would have been granted then. The plaintiffs brought an action alleging the defendants had conspired to injure them by publishing defamatory matter and that the matters complained of as slanders had been published in pursuance of that conspiracy. They succeeded at trial, the trial judge having apparently ruled as a matter of law that the matters complained of were not published on a privileged occasion. On appeal, the issues raised were whether the primary judge was correct in permitting the plaintiffs to join the causes of action in conspiracy to those of slander, whether the action was maintainable without proof of special damage and a complaint about whether a declaration that the defendants had conspired to defame the plaintiffs should have been made. The appeal was unsuccessful save that it was held the declaration should not have been made. Insofar as the defence of qualified privilege was concerned, only Bankes LJ and Neville J dealt with the issue briefly saying (at 571, 572) that the evidence was insufficient to establish any occasion of privilege. There was no reference to the fact the slanders were volunteered, or to their timing. 114In Guise v Kouvelis , the defendant, who was a member of the Hellenic Club, said loudly in a room of the club in which a number of people (members of the club and others) were present, words to the effect that the plaintiff (who was not a member) had engaged in crooked behaviour in playing cards. In an action for damages for slander, the plaintiff succeeded at trial, but the Full Court reversed that decision, Davidson and Maxwell JJ, Jordan CJ dissenting, upholding the defence of qualified privilege: Guise v Kouvelis (1946) 46 SR (NSW) 419. The High Court upheld the plaintiff's appeal (Latham CJ, Starke, McTiernan and Williams JJ; Dixon J dissenting). McHugh J ( Bashford at [73]) referred in some detail to the reasons of Latham CJ and Starke J, as well as the dissenting reasons of Dixon J. As is apparent, the majority upheld the appeal essentially on the basis that the defendant had no duty, legal, social or moral to utter the words to members of the club in general, and "[t]o hold the contrary would amount to granting a wide licence to officious and interfering mischief-makers": at (at 112) per Latham CJ (with whom McTiernan and Williams JJ agreed); Starke J (at 114). While the fact the statement was volunteered was clearly of some significance, once again, there was no reference to the timing of the slander. 115Andreyevich v Kosovich was a case in which a publication to the world at large was held not to be privileged. It concerned an article published in "Napredak", a newspaper printed in the Croatian language, which sold for sixpence a copy, of which one defendant, Kosovich, was the publisher and proprietor, the other the printer. Kosovich was also the president of a Yugoslav club. Andreyevich was the president of another Yugoslav club. The article, in substance, imputed that the plaintiff (and three others) "were 'cursers and destroyers' in relation to a campaign of liberation ... being conducted in Yugoslavia ... [and were] ... traitors to their native country and to the Allies in the war who were supporting the struggle of the patriots in Yugoslavia ... struggling to win freedom from the invader": Andreyevich v Kosovich (at 367). The trial judge refused to direct the jury that the article was published on an occasion of qualified privilege and the jury found for the plaintiff. The defendants moved the Full Court seeking an order that a verdict be entered in their favour. Jordan CJ (with whom Street J agreed) held (at 364) that "no one could reasonably hold it to be expedient in the interest of the people of New South Wales as a whole that 'interest' of the kind indicated [in Howe v Lees ] should justify the publication of such calumny with impunity." Davidson J (at 369) also concluded that the publication exceeded the limits of a possible occasion of privilege. Insofar as any issue of voluntariness might be discerned (none having been expressly referred to) it was clearly that which applies to mass media generally. There was no issue of timing.

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Coxhead v Richards 116Mr Tobin referred to Coxhead v Richards (1846) 2 CB 569; 135 ER 1069 as the origin of the proposition that the volunteering of defamatory matter will not be protected by qualified privilege unless it is an answer to a pressing need. 117In Bashford , McHugh J (at [75]) cited Coxhead v Richards as authority for the proposition that "where imminent injury to the person or loss or damage to property is concerned, the common law has given a wide protection to defamatory communications initiated by a defendant where they are necessary to protect the immediate interests of a person - usually the recipient". That statement should be understood by careful consideration of the source and its subsequent reception. 118Coxhead v Richards concerned the question whether a stranger had a defence of qualified privilege in circumstances where he informed the owner of a ship that its captain was constantly drunk and unfit to command. He based his statement on a letter he had received from a crew member of the ship seeking his advice as to what he should do with that information. He had no personal interest in the subject matter of the defamatory communication, but as Tindal CJ explained (2 CB 569 (at 595); 135 ER 1069 (at 1080)), considered it to be his duty to communicate the information to the ship's owner so that he could "investigate the truth and take such steps as prudence and justice to the parties concerned required". 119Tindal CJ (2 CB 569 (at 595); 135 ER 1069 (at 1081)) accepted that if the defendant had had a personal relationship with the defendant or even if the "danger disclosed by the letter, either to the ship or the cargo, had been so immediate as that the disclosure to the ship-owner was necessary to avert such danger", the publication would have been protected. It was to this passage in Coxhead v Richards that McHugh J appears to have been referring in Bashford (at [75]). Tindal CJ rejected the plaintiff's submission that it was incumbent on the defendant to investigate the charge himself. He considered that although the ship was not to sail for a month, the crew of the ship was exposed to a hazard, even though the hazard presented by the ship remaining in port was not as great as if it had been at sea. The ship-owner was also injured by "the want of discipline of the crew, and the bad example of such a master." Accordingly he held (2 CB 569 (at 595); 135 ER 1069 (at 1081)) that the publication of the defamatory material to the person best able to adopt "the most proper and effective means to avert the danger" was protected. Erle J (2 CB 569 (at 608); 135 ER 1069 (at 1085)) expressed the view that there are cases where "the protection appears ... to be derived from the relation in which the receiver of the information stands to the person who is the subject of it; as in the case of information given to prevent danger from misconduct; and for this class I think it is not essential that the giver of the information should stand in any relation to other parties." He identified this rule as founded on a consideration of the importance of the information to the receiver - in this case of knowing the "character of a servant". 120Coltman J's reason for finding against the defendant was expressed as follows (2 CB 569 (at 601); 135 ER 1069 (at 1082)): "The duty of not slandering your neighbour on insufficient grounds, is so clear, that a violation of that duty ought not to be sanctioned in the case of voluntary communications, except under circumstance of great urgency and gravity." 121Cresswell J (2 CB 569 (at 604); 135 ER 1069 (at 1084)) concluded that absent any relationship with the owner, the defendant as a stranger was under no public or private duty to make the communication. In particular he found that the defendant had no right to take on the vicarious duty to communicate matter the author of the letter may have had a moral duty to convey. 122At the trial Tindal CJ had found the communication was protected by qualified privilege and, there being no malice, the defendant had succeeded. As the Court was equally divided the rule nisi was dropped and the defendant's verdict stood. 123Coltman J was the trial judge in Bennett v Deacon (1846) 2 CB 628, 135 ER 1093 where the defendant told a trader not to give credit to the plaintiff for the price of some timber. The statement was volunteered. Coltman J ruled (2 CB 628 (at 631); 145 ER 1093 (at 1095)), that "although the communication might have been privileged if bon fide made in answer to inquiries addressed to the defendant as to the credit and circumstances of the plaintiff, yet, inasmuch as he had volunteered the information, the case did not fall within the general rule." On a motion for a new trial heard by the same bench as had heard Coxhead v Richards , the judges maintained the position they had held in that case so the plaintiff retained his verdict. 124In Davies v Snead (1870) LR 5 QB 608 (at 611), a case which involved no timing issue, Blackburn J described Tindal CJ and Erle J's opinions as authority for the proposition that "where a person is so situated that it becomes right in the interests of society that he should tell to a third person certain facts, then if he bon fide and without malice does tell them it is a privileged communication." McHugh J referred to Davies v Snead as supporting his attribution of principle concerning "imminent injury" to Coxhead v Richards : Bashford (at [75]). It is not apparent to me that Blackburn J was passing any comment on the relevance of timing. 125As is apparent from the following discussion, subsequent authorities have explained Blackburn J's statement that "it becomes right in the interests of society" as synonymous with there having been a duty on the defendant in Coxhead v Richards to make the communications in question. 126In Watt v Longsdon (at 145) Scrutton LJ described Coxhead v Richards as: "[a] conspicuous instance of the difficulties which arise when judges have to determine the existence of duties, not legal, but moral or social, by the inner light of their own conscience and judgment and knowledge of the world." 127Scrutton LJ (at 145) understood Tindal CJ to have considered the defendant's protection to arise from " 'various social duties by which men are bound to each other,' and that it was the duty of the defendant to communicate this information to the owner", a duty his Lordship (at 146) described as of a "moral" nature; see also (at 152) per Greer LJ: London Association for Protection of Trade v Greenlands Limited (at 35) per Lord Atkinson.

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The reception of Coxhead v Richards 128In dealing with classes of occasions of qualified privilege Spencer Bower expressed the view that cases in which a communication was held not to attract a defence of qualified privilege because it was volunteered could not by 1923 "be regarded as sound, insofar as they decide that the new factor voluntariness negatives all possibility of protection" (emphasis in original): Spencer Bower, A Code of the Law of Actionable Defamation , 2 nd ed (1923) Butterworth & Co (at 112 ff). 129Spencer Bower (at 115) identified as within the class of publications protected by qualified privilege, being "a general publication" made "by any person having ... [a] duty or interest." He illustrated that proposition (at footnote (gg)) by reference to Coxhead v Richards and observed that at the time of writing it was well established that the view of Tindal CJ and Erle J in Coxhead v Richards was: "... the correct one, and that the proper course for the judge to adopt at the trial where it appears that the communication was not in answer to an inquiry, is to leave this fact, together with the other circumstances of the case (where any of them are disputed), to consideration of a jury, accompanied by an adequate direction (as was done by Tindal CJ in the earlier case) or, where there is no such dispute, and it becomes, therefore, the duty of the judge to rule on the question, to take this fact, with all the others, into account before so ruling, and not to direct the jury (as Coltman J did in the later case) that the voluntariness of the communication ipso facto excludes it from immunity." 130Spencer Bower cited Davies v Snead as articulating the proposition for which Coxhead v Richards stood and referred to subsequent statements approving and/or applying that proposition. He said (at 116, footnote (gg)), it could be accepted as law that, in the language of Jessel MR in Waller v Loch (1881) 7 QBD 619 (at 621), "it is not necessary in all cases that the information should be given in answer to an inquiry", adding: "The question is not whether the communication was volunteered or not, but whether, having regard to this and all the other circumstances of a particular case, it was in accordance with duty, and was made under a sense of duty ... or fails to satisfy these requirements." See also Odgers, A Digest of the Law of Libel and Slander , 5 th ed (1911) Stevens and Sons Limited at 264, referring to Coxhead v Richards and concluding (at 265) his consideration of the relevance of volunteered statements absent a pre-existing confidential relationship by saying: "But in every case the test would appear to be, Did the defendant act under a sense of duty, or from any motive of self-interest? In the former case, whenever a moral or legal duty exists, he is protected. In the latter he is not. ( Macintosh v Dun... )." 131McHugh J referred to Jessel MR's statement in Waller v Loch ( Bashford (at [74])), then added: "In all cases, however, the fact that the defendant has volunteered the statement is an important - often decisive - factor in determining whether the occasion was privileged." 132The 1 st edition of Gatley, Law and Practice of Libel and Slander , (1924) Sweet & Maxwell Limited at 213 - 214 accepted that circumstances may exist which made it A's moral duty to inform B of facts derogatory of C, even though B had made no inquiry of A in the matter and opined: "Volunteered communications were formerly regarded with much less favour than at the present day; indeed, according to some of the earlier decisions, no privilege attached to such communications when made to a stranger. But later cases have established a more liberal view. The officiousness of the defendant in volunteering the communication, though an important element for consideration in determining whether the defendant acted under a sense of duty or from an indirect motive, is not the decisive test in determining whether the occasion is privileged." 133The cases Gatley cites as authority for the earlier view all predate Coxhead v Richards . The authority Gatley appears to have relied upon to support the proposition that there was a later more liberal view was Greenlands Ltd v Wilmshurst & The London Association for Protection of Trade [1913] 3 KB 507 (at 535 - 536) where Hamilton LJ said: "Though the fact that a communication is volunteered is material on the question of malice - was the defendant a fussy busybody acting 'ultroneously' or a person discharging a genuine social duty? - it is not conversely true that the issue of privilege can generally turn on this circumstance . Privilege must depend on the relations of the parties, on the duty thereout arising, and on the occasion which is used or abused, not on the mere accident who spoke first. When this is critical it is on account of the nature of the duty, the discharge of which may or may not be consistent with volunteering the statement. There is no general rule that statements which would be privileged if made in answer to an inquiry cease to be so when the informant has not waited to be asked. " (emphasis added) The House of Lords reversed the Court of Appeal's decision in Greenlands Ltd v Wilmshurst & The London Association for Protection of Trade , but not in terms which detracted from the force of Hamilton LJ's statement. 134Gatley concluded his section headed "Statements Volunteered in Pursuance of a Duty" by echoing Odgers, and stating that the real test as to whether the occasion was privileged was "whether, having regard to this and to all other circumstances of a particular case, it was a moral or social duty of the defendant to volunteer the communication": Gatley, Law and Practice of Libel and Slander in a Civil Action , Sweet & Maxwell Ltd (1924) (at 213 - 214). 135Statements volunteered in pursuance of a duty received substantially the same treatment in the 8 th edition of Gatley: P Lewis, Gatley on Libel and Slander , 8 th ed (1981) Sweet & Maxwell at [480] - [481]. (The 8 th edition of Gatley dealt with the situation of voluntary communications between strangers, stating that in such circumstances it was "often very difficult to determine whether in the circumstances of a given case a moral duty was cast on one of them to volunteer the communication": Gatley 8 th ed at [499]). Coxhead v Richards is discussed under this heading with a footnote as follows: "A careful reading of the judgments in Coxhead v Richards (ubi sup.) , seems to show that Tindal CJ and Erle J had prominently before their minds the danger which existed to the lives of the crew; while Coltman and Creswell JJ, not accepting the existence of the urgency of this danger, were unwilling that the reputation of the plaintiff should be sacrificed to the property interest of the shipowner. See the argument of Terence O'Connor KC in Watt v Longsdon [1930] 1 KB 130 at pp 135 - 136: 'Is it for the common convenience and welfare of society that a shipowner should be informed of the conduct of his captain which is endangering the lives of his crew? The law has answered in the case of Coxhead v Richards that it was. The question whether it is for the common convenience and welfare of society that a wife should be informed of her husband's misconduct is a very different question ... The answer must depend of the circumstances.' In such case the law has to weigh and measure the several interests - life, family, reputation, property and the rest - that are involved. For the opinion of a leading moralist on the relative values of these things see, eg Aquinas ST, 2a, 2ae, Q. 73 A. 3: whether defamation is the greatest wrong a man may do to his neighbour." (emphasis in original) 136The 11 th edition of Gatley treats the subject of volunteered statements in performance of a duty initially in substantially the same way as the 1 st and 8 th editions: P Milmo and WVH Rogers, Gatley on Libel and Slander , 11 th ed (2008) Sweet & Maxwell at [14.31]. However after referring to the "general rule" as set out in the 8 th edition, the text says "yet ordinarily" then sets out the second and third sentences of [73] of the McHugh J's judgment in Bashford as well as the last two sentences of his paragraph [77]. Footnote (211) to those extracts points out that McHugh J's judgment was a dissenting one and adds "but it does not appear that the majority would have disputed the proposition" in paragraph [73]. I do not understand the basis of the authors' view in this respect. As will be apparent, the majority did not consider the issue of "pressing need", nor emphasise the role of volunteered statements in the same or even similar terms to McHugh J. 137Nevertheless, when dealing with the "real test" for qualified privilege, the 11 th edition (in the text of [14.31]) returns to the language of the 8 th edition which, by reference to Watt v Longsdon, describes the defence as being determined by whether, having regard to all the circumstances of the case, "it was the moral or social duty of the defendant to volunteer the communication." 138A statement of similar import to McHugh J's statement in Bashford (at [73]) does appear in Professor Raymond Brown, The Law of Defamation in Canada , 2 nd ed (1994) Carswell at 681 - 682 [13.2(5)] as follows: "The court does not look kindly upon those who officiously meddle in the affairs of others, unless there is some pressing justification. However, its view of the conduct may depend on the relationship between the parties. Thus, the court is likely to be more solicitous about someone who is acting at the specific request of another than about someone who takes it upon himself or herself to volunteer information. However, occasionally, even in the latter instances the court may protect a volunteer, although he gratuitously offers information to a stranger." 139Professor Brown attributes the "pressing justification" proposition to Earl J in Byam v Collins 111 NY 143 (at 151); 19 NE 75 (at 76) (1888). Earl J in turn drew that proposition from Coltman J's reasons in Coxhead v Richards . As is apparent, at the time Earl J wrote, it was accepted, at least in the English texts to which I have referred, that Coltman J's view had generally been rejected. Brown attributed the last statement concerning the volunteer to Jessel MR in Waller v Loch (at 621), and quoted the same passage from that judgment as McHugh J quoted in Bashford (at [74]). 140Professor Brown's text deals extensively with authorities in the United States. It is unnecessary to determine whether a "pressing justification" test has found roots in that jurisdiction. Suffice it to say, with respect, that the views McHugh J expressed in Bashford concerning the decisiveness of voluntariness and "pressing need" are not supported by the authorities to which he referred or by decisions of this Court. Counsel for the respondent did not identify any decision of the High Court or of a court of comparable jurisdiction in Australia where they have been supported. My researches have not identified any such cases. In my view the views McHugh J expressed in Bashford on those propositions do not represent the law of Australia. The issue of qualified privilege turns on a close examination of all the circumstances of the publication.

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Conclusion 141In my view the primary judge erred in concluding the appellant did not establish the defence of qualified privilege. The appellant had a tangible interest in his takeover bid for Souths succeeding. He had recently discovered that it was the respondent who was spreading what he regarded as misleading information about the bid. He formed the belief that the respondent's action was influenced by a concern to prevent new blood taking control of Souths and investigation the circumstances of the payments to his son. It was in those circumstances that he wrote the matter complained of. In my view the "great mass of right-minded [people] in the position of the [appellant] would have considered" he had an interest, in the circumstances, to communicate with Mr Ferguson (and the CFMEU) in the terms he did: Stuart v Bell [1891] 2 QB 341 (at 350) per Lindley LJ. 142The primary judge rejected the defence firstly on an application of the views of McHugh J in Bashford concerning voluntariness and "pressing need": see, in particular, primary judgment (at [69] - [70]). It was further, and possibly independently, rejected because Mr Ferguson could not properly investigate the allegations before the EGM: primary judgment (at [71]). 143For the reasons I have given, there was error in the first basis for rejection. As to proper investigation, her Honour, with respect, does not appear to have understood the appellant's object was, at least in part, to stop the respondent spreading the misleading information. I would disagree with her Honour's conclusion (at [70]) that there was a "tenuous connection" between the misleading and the corruption allegations. The misleading allegation and the corruption allegations were inextricably linked: that is to say each was germane to the occasion, because it was the latter which, in the appellant's mind, explained the former. 144Nor had the aspect of the corruption allegations, that is to say that they were motivating the respondent to spread misleading information about the bid, a matter which vitally concerned the appellant, been "dealt with". If the appellant's concern about the respondent's motive was correct, there was a live issue about a matter in which the appellant, as I have said, had a tangible interest. 145The appellant's and the CFMEU's interests did not, as her Honour recognised (at [68]), have to correspond precisely. There had to be a community of interest: see Aktas (at [22]). This was, in my view, established by the appellant's interest in the bid for Souths succeeding and not being thwarted by a person who was possibly motivated by a desire to protect misconduct as an employee of the CFMEU and the CFMEU's interest in knowing the character of the respondent.

Parties

Applicant/Plaintiff:

Holmes a Court

Respondent/Defendant:

Papaconstuntinos

Legislation Cited (2)

Suitors' Fund Act 1951(NSW)

Defamation Act 2005(NSW)

Cases Cited (40)

Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166 Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 Lindholdt v Hyer [2008] NSWCA 264 London Association for Protection of Trade v Greenlands Ltd [1916] 2 AC 15 Macintosh v Dun [1908] AC 390 Megna v Marshall [2010] NSWSC 686 Moit v Bristow [2005] NSWCA 322 Mowlds v Fergusson [1940] HCA 38; (1940) 64 CLR 206 Mundine v Brown (No 6) [2010] NSWSC 1285 Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1 Ronald v Harper [1910] HCA 43; (1910) 11 CLR 63 Ryan v Premachandran [2009] NSWSC 1186 Stephens v West Australian Newspapers Ltd [1994] HCA 45; (1994) 182 CLR 211 Stuart v Bell [1891] 2 QB 341 Telegraph Newspaper Co Ltd v Bedford [1934] HCA 15; (1934) 50 CLR 632 Thomas v Moore [1918] 1 KB 555; Toogood v Spyring (1834) 1 Cr M & R 181; 149 ER 1044 Waller v Loch (1881) 7 QBD 619 Watt v Longsdon [1930] 1 KB 130 Wenman v Ash (1853) 13 CB 836; 138 ER 1432 Wyatt v Gore (1816) Holt 299; 171 ER 250 Texts Cited: Gatley, Law and Practice of Libel and Slander in a Civil Action, 1st ed (1924) Sweet & Maxwell Ltd George Paton and Professor Sawer, "Ratio Decidendi and Obiter Dictum in Appellate Courts" (1947) 63 Law Quarterly Review N Duxford, The Nature and Authority of Precedent, (2008) Cambridge University Press Odgers, A Digest of the Law of Libel and Slander, 5th ed (1911) Stevens and Sons Limited P Lewis, Gatley on Libel and Slander, 8th ed (1981) Sweet & Maxwell P Milmo and WVH Rogers, Gatley on Libel and Slander, 11th ed (2008) Sweet & Maxwell Sir Rupert Cross, Precedent in English Law, 4th ed (1991) Clarendon Press Oxford Professor Raymond Brown, The Law of Defamation in Canada, 2nd ed (1994) Carswell Spencer Bower, A Code of the Law of Actionable Defamation, 2nd ed (1923) Butterworth & Co Category: Principal judgment Parties: Peter Holmes a Court - Appellant Tony Papaconstuntinos - Respondent Representation: Counsel: BR McClintock SC with RW Potter - Appellant TK Tobin QC with RK Weaver - Respondent Solicitors: Baker & McKenzie - Appellant Slater & Gordon - Respondent File Number(s): CA 2009/298579 Decision under appeal Citation: Papaconstuntinos v Holmes a Court [2009] NSWSC 903 Date of Decision: 2009-09-04 00:00:00 Before: McCallum J File Number(s): SC 2006/20404

Headnote [This headnote is not to be read as part of the judgment ] In 2005 the appellant, Mr Peter Holmes a Court and others made a bid for the controlling interest in the South Sydney District Rugby League Football Club ("Souths"). At that time the respondent, Mr Tony Papaconstuntinos, was one of the directors of the Souths Sydney Leagues Club, a licensed club associated with Souths and also an employee of the Construction, Forestry, Mining and Energy Union (the "CFMEU"). He was also a keen Souths' supporter and was staunchly opposed to the proposed takeover of Souths. The bid to acquire the controlling interest in Souths was controversial. It was to be put to the Souths' members' vote at an Extraordinary General Meeting ("EGM") to be held on Sunday, 19 March 2006. On 17 March 2006 the appellant wrote a letter to Mr Andrew Ferguson, the State Secretary of the CFMEU. The primary judge found that that letter conveyed three defamatory imputations of and concerning the respondent, one in substance accusing him of repeating misleading information about the bid (the "misleading allegation") and two of being reasonably suspected by the appellant of corrupt conduct in relation to Souths' funds (the "corruption allegations"). The precise terms of the imputations appear in the judgement. The alleged misuse of funds arose out of the circumstances in which Souths had employed the respondent's son several years earlier. The appellant defended the proceedings, relevantly, on the basis that the matter complained of was published on an occasion of qualified privilege at common law. The primary judge rejected the defence. She held that the appellant volunteered the statements in the matter complained of. She accepted that Mr Ferguson and another CFMEU employee had an interest in receiving the information in the matter complained of in so far as it concerned the respondent's conduct as a CFMEU officer and that they also had an interest as his employers. She also accepted that if true, the misuse of funds the appellant suspected warranted consideration by the secretary of the CFMEU. However she found that there was no pressing need for the appellant to protect his interests or those of others involved in the bid by volunteering the defamatory information about the events surrounding the employment of the respondent's son when he wrote the matter complained of. She also held that the publication of the defamatory statements was not warranted in furtherance or protection of the appellant's interests. Her Honour also found that, in the event her decision on the occasion of qualified privilege point was incorrect, the appellant was not actuated by malice in the publication of the matter complained of. There was no challenge on appeal to the latter finding. The issues for determination on appeal were : (1) Whether the fact that the matter complained was a voluntary publication and the timing of its publication was decisive against a finding that it was published on an occasion of qualified privilege. (2) Whether the primary judge erred in determining the defence of qualified privilege by applying the dissenting reasons of McHugh J in Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; (2004) 218 CLR 366 and decisions of the Court of Appeal referring to McHugh J with apparent approval. (3) Whether the primary judge erred in concluding the appellant had not established the reciprocity of interest necessary to make good the defence of qualified privilege. (4) Whether the misleading allegation and the corruption allegations were germane and reasonably appropriate to the occasion of qualified privilege so as to attract the defence of qualified privilege. Held, per McColl JA (Allsop P, Beazley JA, Giles JA and Tobias JA agreeing) allowing the appeal: As to issue (1) 1 The question whether a defence of qualified privilege is made out depends upon 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: at [5], [7], [77] Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; (2004) 218 CLR 366 applied As to issue (2) 2 The primary judge erred in rejecting the defence of common law qualified privilege by reference to the voluntary nature of the matter complained of and the absence of any pressing need for its publication. 3 It is not the law of Australia that either the fact the defamatory statement was voluntary and/or the timing of its publication is decisive on the question whether that defence is made out: at [5] - [6], [12], [15] -[18], [140]. Coxhead v Richards (1846) 2 CB 569; 135 ER 1069; Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; (2004) 218 CLR 366 discussed Bennette v Cohen [2009] NSWCA 60; Goyan v Motyka [2008] NSWCA 28; Lindholdt v Hyer [2008] NSWCA 264 explained As to issue (3) 4 The primary judge erred in concluding the appellant had not established the reciprocity of interest necessary to make good the defence of qualified privilege. The appellant proved the community of interest necessary to establish the defence. He had an interest of a tangible kind to ensure the respondent stopped spreading misleading information about the vote to be taken at the EGM, an action he perceived to be motivated by what he understood to be the respondent's interest in preventing new blood taking control of Souths and investigating the circumstances of the payments to his son and the CFMEU had an interest in knowing the character of the respondent: at [141] - [145]. Aktas v Westpac Banking Corporation Limited [2010] HCA 25; (2010) 84 ALJR 551 applied As to issue (4) 5 The misleading allegation and the corruption allegations were each was germane to the occasion of qualified privilege, because it was the latter which, in the appellant's mind, explained the former: at [143]. ORDERS (a) Appeal allowed with costs. (b) Set aside the orders of McCallum J entered on 4 September 2009. (c) Verdict and judgment for the appellant. (d) Respondent to have a certificate under the Suitors' Fund Act 1951 (NSW) if otherwise qualified.

[2002] HCA 57

[1934] HCA 15

[2009] HCATrans 291

(2010) 84 ALJR 551

(2010) 273 ALR 118

(1993) 176 CLR 300

(2004) 218 CLR 366

(1987) 163 CLR 303

(1947) 74 CLR 102

(1910) 11 CLR 361

(2000) 205 CLR 166

(1997) 189 CLR 520