Consideration: qualified privilege
145 Cabbie describes itself as "Australian Taxi Drivers' Own Magazine". The two issues in which the matters complained of respectively were published were emblazoned with the words "Now Free". Notwithstanding this, page 3 of each issue describe the annual subscription fee as being $30. It also said the magazine was published 11 times a year.
146 On page 15 of each of the two relevant issues was a heading, "Where to get your Free Copy of Cabbie". A number of sites were listed in Sydney, Melbourne, Brisbane and the Gold Coast respectively. There were several Gogas sites, others which appeared to be gas sites, some service stations and some sites which appeared to be specifically cab directed. The sites also included the BP service station at Melbourne Airport, a Mobil service station in what appeared to be a suburb of Brisbane, a BP outlet in another suburb of Brisbane, the Gold Coast Airport and something described as the "Caltex (Fat Chook)" site at Mermaid Beach on the Gold Coast.
147 The appellant's evidence was that he distributed Cabbie at Sydney Airport every month. He said the main method of distribution was at the airport holding rank where he or somebody else would hand Cabbie out "to cabbies who wanted them". He said that over seven or eight hours in one day 2,500 would be handed out.
148 He said two boxes of the magazine were distributed to LPG gas stations around Sydney which were particularly popular with cab drivers. A few were also distributed to suppliers to the industry. Those suppliers appeared to be sites where taxi drivers/operators had their meter changed or made insurance arrangements. He said those suppliers had asked to have 25 or 30 Cabbies on their counter in their reception "because they have cab drivers coming in all the time".
149 The magazine also had what his Honour described (at [73]) as a "modest list of subscribers". This is an accurate description. The appellant gave evidence that his subscription list changed every month, but that in the period September 2004 to February 2005 there were about 200 people on it.
150 The appellant said the Queensland Taxi Driver Association handled distribution in Queensland, primarily in Brisbane and the Gold Coast. It was also distributed at what he described as two or three LPG gas petrol stations there. He did not appear to be clear about how that distribution was effected, but assumed that the copies left at the LPG gas petrol stations were displayed, presumably for collection. He said about 1,700 copies of the two issues containing the matters complained of were distributed in Queensland and about the same in Victoria. Once again, in Victoria, the magazine was distributed to LPG petrol stations "frequented primarily by taxi drivers", to a meter supplier and an insurance supplier.
151 The appellant was asked whether the magazine was available for general distribution. He accepted that it would not be hard for somebody who was not a "stakeholder in a taxi industry" to obtain a copy. He said he relied on the title of the magazine and the fact it stated it was the "Taxi Drivers' Own Magazine" to assume that most of the general public would be totally disinterested. He said that a lot of his advertising was sold by cab drivers and appeared to suggest that the reason he invited recipients of the magazine to show it to passengers was so passengers could "have a flick through it to see the advertising that is in so they can go away and make a decision … if they want to advertise to cab drivers".
152 In the light of this evidence I cannot, with respect, accept the primary judge's conclusion that the distribution of Cabbie went "no further than is necessary to do so". The distribution of Cabbie, in my view, while in many respects targeted at a taxi industry audience, was also indiscriminate to the extent that it was left lying around public places where anyone could pick it up. Indeed, insofar as the magazine was distributed on the Gold Coast, one of the sites at which free copies were distributed was the airport itself. It need hardly be said that an airport is a place to which the general public has recourse.
153 It is not to point, in my view, that the primary judge doubted whether passengers and, it might be inferred, the general public, would do more than glance at the magazine. It could safely be inferred that not all readers of mass circulation newspapers read it from cover to cover, read all articles (or indeed, any), in depth or merely skim some, or all.
154 The law has not drawn a distinction for the purposes of the defence of qualified privilege between those who would read an entire newspaper thoroughly and those who might read it selectively and/or merely glance at it. Once it is established the matter complained of was published to the general public, the publisher has to demonstrate reciprocity of duty and interest with that audience. And, as the majority said in Bashford (at [26]) "only in exceptional cases ha[s] the common law recognised a duty to publish or interest in publishing defamatory matter to the general public".
155 I turn next to the subjects with which the magazine generally dealt. I take that approach because that is the approach sanctioned by the majority in Bashford (at [24] - [26]); cf McHugh J (at [37] - [38], [62]), Callinan J (at [234] - [235]).
156 In considering the subject matter of Cabbie, I bear in mind that one of the appellant's purposes in starting the magazine was to take the side of taxi drivers and taxi operators against the Taxi Industry Association, the taxi networks and the Taxi Council. It was also intended to give drivers and operators a forum on matters which concerned them. Without pretending any greater familiarity with the taxi industry other than as an occasional user of its services, it is apparent from a perusal of the magazine in which the two matters complained of appeared, that it was fulfilling the purpose the appellant intended.
157 The December 2004 issue contained an editorial dealing with a variety of issues clearly directly affecting taxi drivers and operators, an article from an anonymous Melbourne correspondent concerning fare increases for Victorian taxi drivers and operators, one dealing with the establishment of a Queensland Taxi Industry Association, another, the repeal of the "no desto trial", letters to the editor apparently from taxi drivers, an article about speeding offences and other desultory articles all of which can fairly be described in my view as of interest to taxi drivers. Without engaging in a similar analysis of the articles in the February 2005 issue, it is fair to say that they also substantially concerned topics of concern to the taxi industry. The subject matter of the magazines could fairly, in my view, be described as that of a taxi driver/operator's economic welfare. I accept that is a subject pitched at a high level of abstraction, but that level is similar to the majority's endorsement in Bashford of occupational health and safety as the relevant subject matter against which to test the issue of reciprocity of duty and interest.
158 I would also accept that the economic welfare of taxi drivers/operators is "sufficiently tangible for the public interest to require its protection": Bashford (at [71]) per McHugh J. I agree with the primary judge's conclusion (at [71]) that "the taxi industry is important to the convenience and welfare of society and that the communication to those involved of matters of debate about the control of the industry and the conditions of work or employment within it promote that convenience and welfare". (emphasis added)
159 Had Cabbie only been published to those in the taxi industry, Bashford would appear to require the conclusion the primary judge reached that the relevant reciprocity of, at least, duty and interest existed. However the majority in Bashford (at [26]) also appeared to accept that a different conclusion would have been reached on the reciprocity issue if the Bulletin in that case had been published to the general public. Gummow J (at [143]) also regarded it as significant that that Bulletin was marketed only to "specific occupational health and safety professionals".
160 I would not agree, however, with the primary judge's conclusion that the relevant reciprocity of interests per se existed. For that to exist, there must be a "community of interest", in the sense of persons pursuing a joint objective: see Howe (at 370) per Griffiths CJ. I would not conclude such a community of interests existed between the publisher, whether for reward or not, of a magazine, even if it did dedicate itself to topics concerning the economic welfare of the taxi industry. Many such mono-topic magazines exist. A glance along a newsagent's shelf reveals magazines dedicated to sports, computers etc. Publishers of such magazines do not have a "community of interest" with their subscribers in the sense required for an occasion of qualified privilege. The interests of society in general do not require that a communication made to any person with an interest in such topics should be protected: Bashford (at [54]) per McHugh J; (at [137) per Gummow J.
161 Once it is concluded that Cabbie is published to the general public, then again, in my view, it cannot be said that the interests of society in general required the publication to it of matters concerning the economic welfare of taxi drivers/operators. Such publications were not made for the welfare of society. The fact that some readers may have been interested in the subject matter does not elevate it to that level: Stephens (at 242) per Brennan J. This was not a case where publication to the public beyond the taxi industry was reasonable, and no wider than was necessary for the effective communication of the imputations: see Gatley (at [14.667]); Stephens (at 263) per McHugh J.
162 Next is the significance of the fact that the statements made in Cabbie were voluntary. The appellant had taken on the mantle of a self-appointed advocate for the taxi industry in this case. The volunteered statements were not made in any of the circumstances to which McHugh J referred to in Bashford (at [77]) to which I have referred. This, as was acknowledged in this Court in Goyan, is almost a decisive factor against a conclusion of qualified privilege.
163 In my view the appellant did not call evidence which established the reciprocity of interest required to establish that the imputations were published on an occasion of qualified privilege. The defence should have failed at this threshold.
164 However in case this conclusion is incorrect, I consider the question whether the defamatory imputations were relevantly connected with the privileged occasion identified by the primary judge (at [68]), namely the communication to the taxi industry on the topics of the development and management of credit systems and competition between them, the cost and availability of insurance and the desire for and the opposition to "no destination" radio bookings.
165 The first matter complained of, the December 2004 article, discussed a variation in taxi booking fees coincident with the introduction of the "no desto" trial, a variation advised to its fleet by Premier Cabs, which apparently required a meter adjustment. The respondent was identified as the "chief advocate" of "no desto" and "elated" that taxi networks would be given the opportunity to decide whether or not "no desto" would continue until advised by Premier cab operators that if that company retained the system, they would work elsewhere. The article asked rhetorically why IPART (the "Independent Pricing and Regulatory Tribunal of New South Wales") had not been asked to determine the booking fee change, why it had been announced so speedily and queried whether it was the respondent who ran the "MoT", presumably the Ministry of Transport.
166 As I have said, the imputations the jury found this article conveyed were:
(a) The plaintiff was running Premier Cabs Pty Ltd ("Premier Cabs") like a "little Hitler", that is, in a wild, unpleasant and dictatorial manner;
(b) The plaintiff was becoming increasingly irrational, in his management of Premier Cabs;
(c) The plaintiff in his management of Premier Cabs was becoming so irrational, that the company was losing cabs by the score;
(d) The plaintiff was an appalling manager of Premier Cabs in that he supported the "No Desto" trial even after it turned out to be an abject fiasco, and only ceased support for the scheme when a delegation of cab operators confronted him and told him that if he retained the scheme, they would take their cabs elsewhere; and
(e) The plaintiff took spiteful pleasure in announcing the reversal of the booking fee, knowing that it would cost drivers up to $150 to have another meter adjustment just four weeks after the drivers had had to pay for a meter adjustment for a paltry fare increase.