Lindholdt v Hyer

CATCHWORDS: DEFAMATION - common law qualified privilege - reciprocity of duty and interest - matters complained of published in magazine dealing with matters concerning taxi industry - copies of magazine left for collection at places where general public had recourse - whether published on occasion of qualified privilege - DEFAMATION - common law qualified privilege - whether defence referable to imputations - DEFAMATION - common law qualified privilege - proof of malice - finding that publisher on campaign to publish persistent and negative statements about plaintiff - whether publisher's ill will actuated publication of matters complained of

Defamation Act 1958 Defamation Act 1974 LEGISLATION CITED: Defamation Act 2005 Corporations Act 2001 (Cth) Wrongs Act 1936 (SA) Supreme Court Rules 1970

Adam v Ward [1917] AC 309 Aktas v Westpac Banking Corp Ltd [2007] NSWSC 1261 Andreyevich v Kosovich (1947) 47 SR (NSW) 357 Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354 Bashford v Information Australia (Newsletters) Pty Limited [2001] NSWCA 470 Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; (2004) 218 CLR 366 Bellino v Australian Broadcasting Corporation [1996] HCA 47; (1996) 185 CLR 183 Bob Kay Real Estate Pty Ltd v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 505 Calwell v Ipec Australia Ltd [1975] HCA 47; (1975) 135 CLR 321 Chakravarti v Advertiser Newspapers Limited [1998] HCA 37; (1998) 193 CLR 519 Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60; (2007) 232 CLR 245 Commonwealth v Welsh [1947] HCA 14; (1947) 74 CLR 245 Cornwell v The Queen [2007] HCA 12; (2007) 231 CLR 260 Costa v The Public Trustee of NSW [2008] NSWCA 223 David Syme & Co Ltd v Lloyd [1984] 3 NSWLR 346 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Goyan v Motyka [2008] NSWCA 28 Greek Herald Pty Ltd v Nikolopoulos [2002] NSWCA 41; (2002) 54 NSWLR 165 Guise v Kouvelis [1947] HCA 13; (1947) 74 CLR 102 Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 Horrocks v Lowe [1975] AC 135 Howe v Lees [1910] HCA 67; (1910) 11 CLR 361 Hyer v Cabbie Pty Ltd [2007] NSWSC 795 John Fairfax Publications Pty Ltd v Hitchcock [2007] NSWCA 364 John Fairfax Publications Pty Ltd v O'Shane [2005] NSWCA 164 John Fairfax Publications Pty Ltd v Zunter [2006] NSWCA 227 CASES CITED: Kimberly-Clark Australia Pty Ltd v Arico Trading International Pty Ltd [2001] HCA 8; (2001) 207 CLR 1 Kuru v State of New South Wales [2008] HCA 26; (2008) 82 ALJR 1021. Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 Lewincamp v ACP Magazines Ltd [2008] ACTSC 69 Lloyd v David Syme & Co Ltd (1985) 3 NSWLR 728 Lockwood Security Products Pty Ltd v Doric Products Pty Ltd [2004] HCA 58; (2004) 217 CLR 274 Macintosh v Dun [1908] HCA 31; (1908) 6 CLR 303 Moit v Bristow [2005] NSWCA 322 Morgan v John Fairfax & Sons Ltd (No 2) (1991) 23 NSWLR 374 Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 New South Wales Aboriginal Land Council v Perkins (1998) 45 NSWLR 340 Petritsis v Hellenic Herald Pty Ltd [1978] 2 NSWLR 174 Polly Peck (Holdings) Plc v Trelford [1986] QB 1000 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448 Reynolds v Times Newspapers Ltd [1999] UKHL 45; [2001] 2 AC 127 Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1 Sims v Wran [1984] 1 NSWLR 317 Skalkos v Assaf [2002] NSWCA 14; (2002) Aust Torts Reports 81-644 Spill v Maule (1869) LR 4 Exch 232 Stephens v West Australian Newspapers Ltd [1994] HCA 45; (1994) 182 CLR 211 Tarabay v Leite [2008] NSWCA 259 Telegraph Newspaper Co Ltd v Bedford [1934] HCA 15; (1934) 50 CLR 632 Toogood v Spyring (1834) 1 Cr M & R 181; (1834) 149 ER 1044 Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; (1966) 117 CLR 118 Warren v Coombes [1979] HCA 9; 142 CLR 531 Wells v Croskery [1952] NZLR 312

TEXTS CITED: Report on Defamation (New South Wales Law Reform Commission, Report 11) P Milmo and W V H Rogers, Gatley on Libel and Slander, 10th ed (2004) Sweet & Maxwell

PARTIES: Peer Lindholdt - Appellant Peter Hyer - Respondent

COUNSEL: Mr T Molomby SC - Appellant Mr R Stitt QC with Ms S Chrysanthou - Respondent

SOLICITORS: Appellant - Not applicable Dibbs Abbott Stillman - Respondent

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S): SC 20455 of 2004

LOWER COURT MEDIUM NEUTRAL CITATION: [2007] NSWSC 795

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 49562/07 SC 20455/05

GILES JA McCOLL JA BASTEN JA

Friday 24 October 2008 Peer Lindholdt v Peter Hyer Judgment 1 GILES JA: As described in the reasons of McColl JA, which I have had the advantage of reading in draft, the trial judge found that the December 2004 and February 2005 defamatory matters were published on occasions of qualified privilege, but that the privilege was defeated because their publication was with an improper motive and so malicious. In my opinion, the appeal against the finding of malice fails. It is not necessary to determine the notice of contention in relation to the finding of qualified privilege, and I prefer not to do so. The submissions before us were far less complete than, as appears from her Honour's comprehensive consideration, the subject deserves, and I think it better not to engage with the law and its application to the facts as might in other circumstances have been appropriate. 2 In what follows I assume familiarity with the reasons of McColl JA, and refrain from unnecessary repetition. 3 The trial judge held that to the extent of the subscriptions received by Cabbie the defendants had a moral duty to publish the magazine, otherwise that the defendants had an interest in publishing it, and that the duty and interest were "reciprocal to the interest of the persons for whose benefit [the magazine] was published". The interest was that of operators and drivers of taxis in being informed about topics the subject of debate in the industry, particularly 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. In his Honour's view, the distribution of the magazine went no further than was necessary to bring it to the attention of the operators and drivers. 4 McColl JA has described the trial judge's findings and reasoning to his conclusion that the publications of the defamatory matter were made for an improper motive, and the submissions that there was error in coming to that conclusion. 5 Critical to the submissions in relation to recklessness and ill will was para [94] of the trial judge's reasons, repeated for ease of reference - "94 There can be no doubt that Mr Lindholdt strongly disliked Mr Hyer. I would not accept his evidence that he did not despise him. I think that his dislike, his ill-will, actuated the articles and explains the extreme language used in them. Although I do not accept Mr Blackburn's submission that Mr Lindholdt knew that his assertions of fact were untrue I am satisfied that the article was published for an improper motive. Mr Lindholdt was content to assume, without any reasonable enquiry, that the serious allegations he was making were true. As a result, he formed a strong dislike for Mr Hyer and despised him. That reckless acceptance of the assertions as true and the ill-will so engendered actuated the making of the statements. They were made for an improper motive." 6 This paragraph followed the trial judge saying that as early as September 2004 the appellant "was reckless as to the truth as to the things he was alleging about Mr Hyer", and his setting out evidence given by the appellant about the article of September 2004. It was followed by the observation that the articles of September and November 2004 did not defame Mr Hyer and Mr Lindholdt did not have to justify them as such, and that the importance of those articles was "to show Mr Lindholdt's attitude to Mr Hyer by the end of 2004; what he thought about him, whether he was prepared to accept without enquiry serious criticisms others were prepared to level at him and whether he was prepared to publish such matters with the sting of the colourful language he chose". Despite the reference to articles in the plural in the second sentence of para [94], when read in context the paragraph related to the making of the statements in the September 2004 article. 7 The recklessness and the ill will so engendered referred to in the paragraph remained in the trial judge's reasoning to his conclusion that the publications of the defamatory matter were made for an improper motive. But his finding of publication of the defamatory matter with an improper motive had more. The trial judge considered that "[t]he whole of the evidence establishes that by 2005 Mr Lindholdt was on a determined campaign to publish persistent and negative statements about Mr Hyer". He referred to "a string of derogatory comments in editorials and articles in Cabbie magazine", to the use of extravagant language in the February 2005 article, and to the appellant having "departed from any attempt to make a fair report or comment about matters affecting the taxi cab industry but … on a crusade against the 'dictator' who had threatened to sue him, Mr Hyer". I do not think it correct to read para [94] as the definitive expression of actuation of making the statements comprising the defamatory matters. 8 So far as the appellant submitted that the finding of improper motive in the publication of the defamatory matters was in error because founded on failure to make reasonable enquiry rather than on wilful blindness, failure to make enquiry is material to the propriety of the appellant's motive and can contribute to a finding that the motive was not consistent with the duty and interest described by the trial judge. As was said by Gaudron, McHugh and Gummow JJ in Roberts v Bass [2002] HCA 7; (2007) 212 CLR 1 at [76] - "Improper motive in making the defamatory publication must not be confused with the defendant's ill-will, knowledge of falsity, recklessness, lack of belief in the defamatory statement, bias, prejudice or any other motive than duty or interest for making the publication. If one of these matters is proved, it usually provides a premise for inferring that the defendant was actuated by an improper motive in making the publication . Indeed, proof that the defendant knew that a defamatory statement made on an occasion of qualified privilege was untrue is ordinarily conclusive evidence that the publication was actuated by an improper motive." (emphasis added) 9 So far as the appellant submitted that the finding of improper motive was in error because founded on ill-will, the position is the same. The appellant submitted in that regard that the proper conclusion from his evidence was that the ill-will as found by the trial judge stemmed from his strong disapproval of the respondent's conduct the subject of the articles, and that ill-will so based fell within the protection of qualified privilege and could not provide evidence of malice destructive of the privilege. As McColl JA has noted, the appellant's counsel was unaware of any authority supporting the submission. In my opinion, it is unsound. Approval or disapproval of conduct by the publisher is distinct from the publisher's duty or interest to publish to others in relation to that conduct, and ill-will stemming from any disapproval can provide a basis for an actuating improper motive. 10 The trial judge did not refer to dominant motive, but that does not mean that he fell into error. It is not uncommon to find reference simply to improper motive, for example in Roberts v Bass at [76], [78], and actuation by an improper motive itself carries that, if there be mixed motives, the improper motive is dominant. The trial judge recorded the respondent's submission that the publications were actuated by improper motive, and spoke in that language in para [94] although expressing his ultimate conclusion in the terms of the defamatory publications being "used for a purpose or motive foreign to the duty of [sic] or interest claimed by Mr Lindholdt". From the reasons as a whole, the trial judge plainly regarded the appellant's crusade against the respondent as dominant over fulfilling the reciprocal duty and interest or any other motive. In my opinion, it can not reasonably be concluded that he misdirected himself by holding that there was malice by reason of an improper motive which was not the dominant motive for the publication of the defamatory matters. 11 The appeal should be dismissed with costs. 12 McCOLL JA: Peer Lindholdt and Cabbie Pty Limited were the defendants in a defamation action in the Supreme Court. The proceedings were brought by the respondent, Peter Hyer. They concerned four articles published in "Cabbie" magazine, which is concerned with the taxicab industry, in September, November and December 2004 and February 2005 respectively. Cabbie Pty Ltd published "Cabbie". Cabbie Pty Ltd employed Mr Lindholdt. It appears to have been common ground at the trial they jointly published the articles. 13 The respondent is a director of Cumberland Cabs Pty Ltd, a company which operates a taxi network, and also of Premier Cabs Pty Ltd, which operates a radio call network for taxis. Cumberland Cabs also manages taxi plates and licences, apparently for taxis which trade as "Premier Cabs". Cumberland Cabs is also an insurance agent, and assists drivers or operators with finance and fitting out cars to use as taxis. It is also the merchant for "Cabcharge". The respondent owned, directly or indirectly, eighteen per cent of the shares in a company, Adelhill Pty Limited, which owned and controlled Cumberland Cabs and Premier Cabs: primary judgment (at [3]). 14 The proceedings were commenced in 2004, prior to the commencement of the Defamation Act 2005 on 1 January 2006 and hence were governed by the now repealed Defamation Act 1974 (the "1974 Act"): see cl 1, Pt 2, Schedule 4, Defamation Act 2005. 15 At a trial conducted pursuant to s 7A(3) of the 1974 Act a jury found that the December 2004 and February 2005 articles conveyed imputations defamatory of the respondent. I shall refer to those two articles as the matters complained of. 16 Pursuant to s 7A(4), 1974 Act, a hearing of the defences of justification and common law qualified privilege Cabbie and Mr Lindholdt relied on and the quantum of damages, if any, took place before Barr J. His Honour rejected the defence of justification. He found that the matters complained of were published on occasions of common law qualified privilege, but that Mr Lindholdt was actuated by malice in their publication. Accordingly that defence also failed. His Honour awarded the respondent damages of $107,500.00 and entered judgment against the defendants in that amount and ordered them to pay the costs of the trial: Hyer v Cabbie Pty Ltd [2007] NSWSC 795. 17 Mr Lindholdt appeals only against the finding that he was actuated by malice. The respondent has filed a Notice of Contention which argues the primary judgment should be affirmed on the basis that neither of the matters complained of was published on an occasion of qualified privilege. 18 The Notice of Appeal, both in its original and amended form, only identified Mr Lindholdt as the appellant. It did not identify Cabbie Pty Ltd as an appellant, a matter about which the respondent did not complain. 19 The Notice of Appeal seeks to set aside the verdict, judgment and costs order. Prima facie Cabbie Pty Ltd should have been joined as an appellant. The Court does not know why it was not joined. However, as the Court proposes to dismiss the appeal it is unnecessary to take the matter further. Statement of the case 20 As I have stated, the jury found that only the articles of December 2004 and February 2005 were defamatory. However, the primary judge had regard to all four articles in concluding that the appellant was actuated by malice. Accordingly I set out each of the articles on which the respondent originally based his proceedings. 21 The following article was published in September 2004: " Hyer loses the Plot

Premier taxi king Peter Hyer finally lost the plot when he refused an operator a plate lease because he had insured his cab with Taxi Care Club.

When the operator showed him QBE authorised documentation as proof of insurance Mr Hyer blew his cool claiming that it did not comply with Premier requirements.

Following the antics of Premier management in recent weeks of derogatory comments and MDT warnings against shonky insurance offers, Taxi Care Club has finally had enough and is threatening Mr Hyer and Premier with legal action for 'third line forcing', a formal complaint to the NSW Ministry of Transport and the ACCC.

Maybe finally the selfish greed of the NSW Mafia will be exposed for all to see. It has been a long time coming but it sure was worth waiting for." 22 The following article was published in November 2004: " Premiums finally crash in NSW

NSW's exorbitant cab insurance premiums have been a contentious issue for many years. Why were we paying nearly twice as much as operators in other states?

When you decide to become a taxi owner you invariably need advice and guidance. Who better to rely on than your network? After all it has the expertise and knowledge. Well, that was 10 to 15 years ago when networks were co­ops and their mission was to look after their members. You didn't just join a network, you became part of a family. Bar a few minor exceptions this is all history. Today's taxi owner is a source of revenue and profit, someone to be exploited to the max. And, nothing has illustrated this more than the insurance premiums charged by the brokerages owned by the major networks. In association with Zurich Insurance they set the outrageous rates that other brokers followed. This cozy (sic, as in original) arrangement finally fell apart when the Taxi Care Club of Victoria only a few months ago entered the NSW market offering much cheaper rates.

Following a short but nasty campaign, especially by Premier Cabs, to discredit the Taxi Care Club, the two major players, Cabsure and Transguard, were finally forced to adopt a different strategy to stay in business. They lowered their premiums, and considerably.

Henry, in 2001/02 paid Cabsure $4,730 for 'comprehensive' on a cab with a settlement value of $12,500. Last month, after getting a quote from the Taxi Care Club, he was offered a premium for a similar car of only $3,430 by Cabsure, a drop of $1,300. In a world where everything seems to be going up, this is quite remarkable. You could be forgiven for thinking that Henry had been screwed for years.

Never before has it been more important to shop around when buying insurance for your cab. You could save thousands, and only because a small taxi club from Victoria had the guts to challenge the Mafia in NSW. Isn't it nice for once to be a winner? There must be a lesson in here somewhere." 23 The first matter complained of published in December 2004 stated: " Peter Hyer going feral The little 'Hitler' running Premier Cabs in Sydney is not only losing the plot, he is also losing cabs by the score. It's about time the bloke had an attitude transplant. Monday morning 29 November 2004 Premier Cabs flashed a message on the MDTs to its fleet. It read something like '$1.45 booking fee reduced back to $1.10 by Ministerial order, effective immediately.' When we rang the Minister's office it knew nothing about it, other networks also didn't know. Maybe Peter Hyer has a private direct line to the Acting Director General Mark Duffy's office? Booking fees were increased from $1.10 to $1.45 in April when the trial of 'No Desto' commenced. The chief advocate of 'No Desto' was Peter Hyer, the Chairman of Premier. When the Allan Cook Report suggested that the trial had been an abject fiasco and should be scrapped immediately, it is alleged that Mr Hyer stated that he would defy any ministerial direction to do so. When Minister Michael Costa announced the end to the trial and that 'No Desto' would be a matter for the networks to decide, Mr Hyer was elated. That is, we are informed, until a delegation of Premier operators confronted and told him that if he kept it on they would take their cabs elsewhere. Premier consequently was the first network to bring back 'Destination'. Like a woman scorned Premier management with glee announced the reversal of the booking fee knowing it would cost its operators up to $150 to have another meter adjustment only four weeks after they had paid for one for the paltry 2.34% fare increase. Why wasn't the change left for IPART to determine. Who organised to have it announced with such lightening speed when it took six month[s] to approve the fare increase? Who really runs the MoT? Surely not Mr Hyer." 24 The jury found the December 2004 matter complained of conveyed the following defamatory imputations: (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. 25 The second matter complained of published in February 2005 stated: " Taxi Boss sues for Defamation

My Christmas present from Peter Hyer, managing director of Premier Cabs in Sydney and a director of both the NSW Taxi Council and Cabcharge, received on 22 December 2004, was a Supreme Court writ claiming he had been defamed in a number of articles in Cabbie, one titled 'Peter Hyer going feral', another 'Hyer loses the Plot' and finally 'Premiums finally crash in NSW'. by Peer Lindholdt In September 2004 Cabbie published a small article headed 'Hyer loses the Plot' about allegations that Mr Hyer had refused to accept insurance covers from the new Taxi Care Club Ltd. The allegations were based on reports from a number of operators that Mr Hyer had threatened not to renew their plate leases if they insured with Taxi Care Club Ltd. They were not made by Cabbie. We simply reported them. We also reported that Taxi Care Club Ltd was considering suing Premier, which operates its own insurance brokerage, for 'third line forcing' which is an illegal business practice. But that's not all. Mr Hyer is also claiming aggravated damages for Cabbie's references to him as going feral, losing the plot and being a little Hitler. He claims these references suggest he is becoming increasingly irrational, unpleasant and dictatorial in the way he runs his companies. Cabbie never claimed he was 'becoming increasingly irrational'. What is however irrational is his blatant attempt to, through frivolous legal action, prevent Cabbie from exposing the truth about the methods employed by the taxi industry mafia of which he is a high ranking member. As for referring to him as 'a little Hitler', which suggests he is running Premier like a dictator, there is plenty of evidence to support such an imputation. Mr Hyer and his ilk in the industry have for years relied on the fears by drivers, operators and staff of retaliation if they took a stand against their treatment. They knew their livelihood would be on the line. Cabbie, for the same reason, has in the past published a number of 'apologies' to avoid defamation proceedings. Not this time. That Mr Hyer and others on the NSW Taxi Council are becoming increasingly paranoid about the threats to their hold over the industry is well justified. Taxi drivers and operators have had enough of some the methods used by the mafia and they are beginning to take affirmative action and fighting back. Dictator types, big or small, never know when to quit. Their egos won't let them. They hang in there until their 'empires' crumble, and crumble they always do. The NSW Taxi Driver Association didn't emerge by accident. It was a long time coming, but as an association representing the grassroots of the industry it has already achieved what the mafia has always feared most, the acceptance and respect by Government ministers, leading bureaucrats and the media. The clean-up has commenced and soon the old slogan 'Proud to be a cabbie' may again have a ring of truth about it." 26 The jury found the February 2005 matter complained of conveyed the following defamatory imputations: (a) The plaintiff behaved in an irrational manner in that he commenced a frivolous legal action; (b) The plaintiff has sought to muzzle legitimate criticism of his conduct by resorting to a frivolous legal action; (c) The plaintiff relies on the fears of drivers of retaliation if they took a stand against him; (d) The plaintiff runs the taxi company, Premier, like a little Hitler, that is, in a dictatorial manner; and (e) The plaintiff is reacting to legitimate challenges to his hold over the taxi industry in an increasingly paranoid fashion.

The primary judgment 27 The appellant contended that the December 2004 and the February 2005 matters complained of were published on an occasion of qualified privilege at common law, in substance because: (a) each related to the behaviour of the respondent as managing director of Premier Cabs Pty Ltd; (b) "Cabbie" was a magazine directed to the affairs of the taxi industry and was distributed to taxi drivers and other persons with an interest in the affairs of the taxi industry; and (c) the matters complained of were published pursuant to a "social and moral interest and duty in publishing information about the taxi industry to those to whom the magazine was distributed who had corresponding interests and duty in receiving such information". 28 In his Reply, the respondent, relevantly, pleaded that the defendants were actuated by malice in publishing the matters complained of. He said they were actuated by improper motives and by their dislike of him and the ill will manifested in their publications. He relied on the "inflammatory" language used in each, the "extravagant allegations", the "indiscriminate distribution", the defendants' failure to verify the accuracy of the information in the matters complained of and the allegation that information in them was false to the defendants' knowledge. He also alleged malice in the publication of the matters complained of which he alleged constituted a campaign of denigration, demonstrating the defendants' purpose was to injure him. In this respect he relied on the September and November 2004 articles, as well as articles published after the commencement of proceedings. 29 After referring to the fact that reciprocity of duty and interest was an essential element of common law qualified privilege, the primary judge made the following findings: "66 The evidence shows that substantial changes have taken place in the taxi industry over the past twenty years. Whereas the taxi networks which provide services like motor vehicle conversion and maintenance and radio call facilities used to be co-operative societies whose members were the owners and operators of taxi plates, such networks these days tend to be incorporated. Those who operate taxis may not own shares in these corporations. Whereas years ago a person wishing to operate a taxi would first need to purchase a plate, these days a person may do so by renting a plate. Whereas co-operative networks used to comprise a small number of plate-owning members, they have become larger. Since it incorporated, Cumberland Cabs has increased the number of taxis it manages from two or three hundred to about nine hundred. Of all its plates, about two-thirds are owned by investors who neither operate nor drive the taxis to which the plates are affixed, but who procure Cumberland Cabs to manage the plates by letting them to operators. There are now about ten taxi networks in New South Wales. The number of radio call networks is about four, including agencies of Macquarie Bank, which have recently entered the market. One important effect of these changes is that whereas operators used generally to have an investment in the plate and, as members of a co-operative, in the body that provided the services they had to have, nowadays operators more often than not lack such a financial interest. Operators leasing plates from Cumberland Cabs have no more substantial interest than a lease terminable on twenty-eight days' notice. Since operators have a less secure financial interest than formerly, the position of drivers who are not operators is likely to be correspondingly less secure than formerly. The industry has changed from one in which investor-operators co-operate to further their common interests to one in which investors and networks have some interests and objects in common with operators and some interests and objects which may compete with those of the operators. The trends I have described are true of Cumberland Cabs. The position is unlikely to be different in other networks. 67 Operators have substantial overheads. They must pay rent for the plates they lease. They must pay their networks fees for providing facilities for work on and management of motor vehicles and for radio call facilities. Insurance is dear. Overheads are likely to be at least $850 per week for a taxi." 30 He then concluded that the "case", by which I understand his Honour to have referred to the subjects of the matters complained of, concerned three important topics concerning changes being made in, or being contemplated for, the taxi industry: 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. He also concluded there was "lively debate on topics germane to the conduct of the industry and the differing interests of those engaged in it": primary judgment (at [68]).

31 He found that the operators and drivers of taxis had an interest in being informed about these topics which were the subject of debate in the industry and the defendants had a reciprocal interest in publishing to affected persons news of and opinions about matters of current controversy: primary judgment (at [70]). His Honour also found that, apart from trivial matters, Cabbie magazines did not appear to contain material not directly or indirectly related to the taxi industry: primary judgment (at [72]). 32 As to Cabbie's circulation, his Honour concluded: "73 Cabbie magazine has a modest list of subscribers, all of whom I infer have an interest in following the debate on matters germane to the industry, but for the most part it is distributed free of charge by delivery to places like taxi depots and washes and LPG service stations frequented principally by taxi drivers . So distributed, it comes to the notice of the operators and drivers for whose consumption it is intended, but goes no further than is necessary to do so." (emphasis added) 33 He rejected a submission that Cabbie had been published to anyone outside the taxi industry. He inferred from evidence that one copy had been found in the back seat of a taxi, that the driver, rather than a stranger using the taxi, had obtained it and left it in the vehicle. He concluded that it was unlikely that any person not having an interest in the industry and its affairs would read Cabbie. He reached that conclusion notwithstanding the statement on the cover of every issue of Cabbie: "Let your passengers have a look at Australia's most widely read taxi magazine." 34 His Honour doubted whether passengers would ever do more than cast an occasional glance at the magazine, given the generally short duration of taxi journeys and the nature of the topics dealt with, which he inferred would not generally interest members of the public: primary judgment (at [76]).

35 The primary judge held: "74 To the extent of the subscriptions received by Cabbie magazine, I think that the defendants have a moral duty to publish the magazine. Otherwise, they have an interest in publishing it. That duty and that interest are reciprocal to the interest of the persons for whose benefit it is published." 36 His Honour rejected (at [78] - [80]) a submission that the appellants had no common interest to publish the matters complained of because they published Cabbie in order to make a profit and had a commercial interest in doing so. He concluded that there was no evidence that in publishing Cabbie the appellants intended to make a profit or did so, but that even if they did, no adverse consequence would flow from the profit motive, referring to Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; (2004) 218 CLR 366 (at [26]). 37 His Honour concluded: "80 Given the restricted subject-matter of the magazine, the narrow range of persons interested in that subject-matter and the restriction of the distribution of the magazine to those persons, I think that, subject to the resolution of the issue of malice, publication of the magazine was made on occasions of qualified privilege. In particular, subject to the resolution of the issue of malice, the editions of December 2004 and February 2005, containing the defamatory material, were published on occasions of qualified privilege ." (emphasis added) 38 The primary judge then considered the issue of malice. It appears to have been accepted at trial that Mr Lindholdt's state of mind was to be equated with Cabbie Pty Limited's. 39 As I have said, the respondent's case was that the appellants were actuated by improper motives in publishing the matters complained of. He argued that the appellant disliked him, and harboured ill will towards him and submitted the Court should infer that the publication of the matters complained of was actuated by the same dislike and ill will: primary judgment (at [84]). 40 His Honour first examined the circumstances in which the September and November 2004 articles were written. He considered them to be important in demonstrating "Mr Lindholdt's attitude towards Mr Hyer by the end of 2004; what he thought about him, whether he was prepared to accept without enquiry serious criticisms others were prepared to level at him and whether he was prepared to publish such matters with the sting of the colourful language he chose": primary judgment (at [98]).

41 The primary judge noted that it was common ground that although Mr Lindholdt had been writing about the taxi industry for years, he had not written about Mr Hyer before. He observed that Mr Lindholdt did not know Mr Hyer. He remarked that "[i]n the circumstances the highly offensive tone of the [September 2004] article is surprising and it is no answer, I think, to say, if it is the fact, that Mr Lindholdt generally wrote in a rude manner on contentious matters": primary judgment (at [88]). 42 The primary judge also thought it significant that Mr Lindholdt did not speak to, or try to speak to, the respondent or the relevant Ministry, before publishing the September 2004 article, "even though the occasion called for enquiry": primary judgment (at [89]). It was also important that even though Mr Lindholdt subsequently discovered that one of his informants, Mr Harken Err, had an interest in Taxi Care Club insurance and he was told that Taxi Care Club insurance certificates did not meet the requirements of the Ministry, neither of these matters caused him to retract any of the statements and he never apologised. Rather, "he allowed to stand contentious statements of fact which he had reason to believe were untrue": primary judgment (at [90]).

43 The primary judge concluded that these matters demonstrated the appellant was "reckless as to the truth of the things" he was alleging about the respondent as early as September 2004: primary judgment (at [91]). 44 The primary judge referred to evidence given by the appellant in cross examination in relation to the September 2004 article (at [92]) in which he admitted that he was ill-disposed towards the respondent for refusing a taxi operator a plate for no valid reason, that when he wrote these articles, he "disliked what [Mr Hyer] was doing", and concluded: "94 There can be no doubt that Mr Lindholdt strongly disliked Mr Hyer. I would not accept his evidence that he did not despise him. I think that his dislike, his ill-will, actuated the articles and explains the extreme language used in them . Although I do not accept Mr Blackburn's submission that Mr Lindholdt knew that his assertions of fact were untrue I am satisfied that the article was published for an improper motive. Mr Lindholdt was content to assume, without any reasonable enquiry, that the serious allegations he was making were true. As a result, he formed a strong dislike for Mr Hyer and despised him. That reckless acceptance of the assertions as true and the ill-will so engendered actuated the making of the statements. They were made for an improper motive." (emphasis added)

45 Although this paragraph refers generally to "articles", it is apparent from the context that these conclusions were expressed in relation to the September and November 2004 articles. Their significance, and that of other passages from the appellant's evidence (summarised at [95] - [97]), was to show the latter's attitude to the respondent by the end of 2004. This supported the inference that the publication of the matters complained of was actuated by the ill-will Mr Lindholdt had formed towards the respondent by that date. 46 The primary judge then considered the evidence as to Mr Lindholdt's state of mind at the time of publication of the two matters complained of.

47 He referred to the appellant's evidence that the December 2004 article was written to explain to the reader, by telling the "story about the end of the no desto scheme", the statements in the headline and the first paragraph that: "Mr Hyer was 'going feral'. He was the 'little Hitler' running Premier Cabs. He was 'losing the plot'. He was 'losing cabs by the score' He needed an 'attitude transplant'." 48 He found that the appellant had no information about, and no justification for, his use of colourful statements in the December 2004 matter complained of "like a woman scorned" and "with glee" and concluded they came from "his imagination, coloured … by his then well-developed dislike for Mr Hyer": primary judgment (at [102]). 49 The primary judge was satisfied that the whole of the evidence established that "by 2005 Mr Lindholdt was on a determined campaign to publish persistent and negative statements about Mr Hyer": primary judgment (at [103]).

50 He referred to the appellant's evidence that at the time the February 2005 article was published, he seemed "to have run a campaign against Mr Hyer", and, too, his evidence that Mr Hyer "put himself in a situation where he became the object of attention": primary judgment (at [105]).

51 He noted that the February 2005 matter complained of repeated an earlier reference to "third line forcing", but that there was no attempt at trial to prove that Premier Cabs was in breach of any statutory provision, that the extravagant language continued and referred to the respondent's by then threatened legal action as "frivolous": primary judgment (at [106]). 52 Accordingly, the primary judge held he was satisfied that the defamatory publications of December 2004 and February 2005 were used for a purpose or motive foreign to the duty or interest claimed by the appellant and were malicious: primary judgment (at [107]).

53 The appellants' grounds of appeal contend that the primary judge erred in his consideration of malice by: (a) failing to consider whether, against the background of the appellant's normal motive for the regular publication of Cabbie Magazine, the motive which he identified as malicious was the dominant motive for the publications complained of; (b) taking into account matters which are not available as evidence of malice (such as failure to make enquiries, apologise, or correct untruths when discovered); (c) identifying as a purpose or motive foreign to the occasion an attitude held by the appellant which was in fact part of the occasion, being based on his beliefs as to the behaviour of the respondent in the incidents featured in the publications; (d) concluding that the appellant had been reckless despite accepting that he believed his allegations to be true; (e) regarding carelessness in compiling the publications as equivalent to recklessness as to the truth of their content; (f) concluding that the appellant was malicious in publishing the matters complained of because he had (as found by the primary judge) been malicious in publishing previous articles without any separate enquiry into the motive for the matters complained of; (g) accepting, once satisfied that there was material available as evidence of malice (dislike of the respondent by the appellant) that, without further enquiry, that material was the motive for the matter complained of; and (h) relying on the appellant's description of the respondent's threat to sue him as "frivolous", without taking into account that the respondent had no cause of action in relation to two of the three articles on which that threat was made. 54 The respondent contends in his Amended Notice of Contention that the December 2004 and February 2005 articles were not published on occasions of qualified privilege. Notice of Contention

55 It is convenient to deal with the Notice of Contention first. If the matters complained of were not published on occasions of qualified privilege, the issue of malice does not arise, although consideration should be given to whether to deal with that ground: Kuru v State of New South Wales [2008] HCA 26; (2008) 82 ALJR 1021. 56 The respondent submitted neither matter complained of was published on an occasion of qualified privilege.

57 First, he argued that there was no reciprocity of duty and interest as between the appellant and the recipients of the matters complained of. He complained that the primary judge posed the wrong test. Rather than identifying with precision the relevant interest of the recipients in having the matters complained of communicated to them, he submitted his Honour identified the subject matters or topics in the magazines and described such topics at too high a level of abstraction. He complained that his Honour made no attempt to identify the relevant interest, particularly the relevant interest of the recipients. He argued that there was no evidence as to who the recipients of Cabbie were, or as to the identity of its subscribers. 58 The respondent submitted that the question whether the matters complained of were published on an occasion of qualified privilege turned on whether "it was in the interests of the New South Wales community as a whole" that they should be published. He also argued that the case was analogous to Macintosh v Dun [1908] HCA 31; (1908) 6 CLR 303 in which it was held that there was no reciprocity of duty and interest in conveying poor and unreliable information. 59 The respondent also submitted in this context that the primary judge had not articulated the basis of his conclusion (at [74]) that the appellants had either a "moral duty" or "an interest" in publishing the matters complained of. 60 As part of his first argument, the respondent also challenged the primary judge's conclusion as to the extent of Cabbie's publication. He argued, that, having regard to the finding that Cabbie was distributed free of charge with bundles being left at taxi depots, carwashes, service stations where LPG was available and that taxi drivers were likely to frequent, coupled with the exhortation to show it to passengers, his Honour's conclusion (at [76]) there was no evidence Cabbie had been published to anyone outside the taxi industry was glaringly improbable in the Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 sense. 61 Next the respondent argued that, even if there was sufficient reciprocity to found an occasion of qualified privilege for either or both matters complained of, the imputations were not sufficiently connected with the privileged occasion. It was submitted, in substance, that the imputations constituted character assassination of the respondent which could not be, and was not, relevant to any occasion of qualified privilege. 62 Finally the respondent contended that Cabbie was in the nature of a publication to the general public. He argued the law had never recognised, save in exceptional circumstances, any duty or interest on the part of a newspaper or journal to publish defamatory statements to the world at large. 63 The appellant challenged the respondent's identification of the relevant recipients of the matters complained of for the purpose of identifying reciprocity of duty and interest as the "New South Wales community as a whole". He argued that the focus should be on the particular group to whom the matters complained of were published, the taxi industry. 64 The appellant also argued that the primary judge's conclusion (at [68]) that the matters complained of were published in the course of discussion of events occurring in the taxi industry was correct. He argued that his Honour did not err in considering whether Cabbie generally, rather than a particular issue, was published on an occasion of qualified privilege. He argued that as a matter of practical reality what applied to the magazine generally applied to each issue. He argued, alternatively, that it was apparent the primary judge's finding of publication on an occasion of qualified privilege took account of the content of each matter complained of. 65 In his written submissions the appellant submitted that the question the Court had to determine in considering the issue of qualified privilege was whether it was for the common convenience and welfare of society that the imputations be protected. In oral submissions, however, he argued that the defence did not go to the imputations, relying on a statement by Hunt J in Bob Kay Real Estate Pty Ltd v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 505 (at 514) that neither the common law nor statutory defences of qualified privilege are directed to the plaintiff's imputations. The significance of that approach, if correct, it was contended was that the Court had to consider whether the material which conveyed the imputations was relevant to the occasion of qualified privilege, not whether the imputations were so relevant. On that approach it would be sufficient that the matter complained of was relevant to the identified duty and interest, even if the defamatory imputations found to have been conveyed were not. 66 Next, the appellant submitted the primary judge's conclusion that there was no evidence Cabbie was published beyond the taxi industry was correct. He also submitted that publication to people beyond the "privileged circle" did not defeat the privilege, relying upon McHugh J's statement in Stephens v West Australian Newspapers Ltd [1994] HCA 45; (1994) 182 CLR 211 (at 263) that while in: "…determining whether a person has a legal, social or moral interest or duty to publish to the world at large, the extent of the publication and the proportion of readers who have a legitimate interest in receiving the communication are relevant factors to be weighed… qualified privilege is not lost simply because the communication is read, seen or heard by persons having no legitimate interest in receiving the communication… If publication in a newspaper or by radio or television is the only reasonable mode of communicating with the public, qualified privilege will not be lost because it is read, seen or heard by persons who have no legitimate interest in receiving the communication ." (emphasis added) 67 The appellant challenged the analogy the respondent drew with Macintosh. He argued there was no principle that qualified privilege did not attach to communications which were "unreliable or scrappy". He contended that the fallacy of that proposition was demonstrated by the fact that the defence quintessentially applied to false statements which could not be defended as true. 68 He submitted that to take into account in any way the quality of the information conveyed in a publication to which qualified privilege might attach would distract from the real purpose of the defence being the honesty of purpose of the person making the communication and the protection of that purpose for the common convenience or welfare of society.

Principles - occasion of qualified privilege 69 The defence of common law qualified privilege recognises that, notwithstanding the publication of defamatory matter, the common convenience and welfare of society requires that communications made in the discharge of some public or private duty, whether legal or moral, be protected: Bashford (at [9]) per Gleeson CJ, Hayne and Heydon JJ, citing Parke B's statement in Toogood v Spyring (1834) 1 Cr M & R 181 (at 193); (1834) 149 ER 1044 (at 1049 - 1050). As their Honours also observed, "[r]eciprocity of duty or interest is essential". Gummow J (who agreed with the majority) also expressed the principle underlying the defence of qualified privilege arising out of a reciprocal duty or interest in Toogood terms, although his Honour did so by reference to Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1 (at [62]) per Gaudron, McHugh and Gummow JJ where their Honours, in turn, had referred both to Toogood and to Adam v Ward [1917] AC 309 (at 334); see also Kirby J (at [187]); Callinan J (at [231]). 70 Because the principles to be applied in determining whether a defamatory statement was published on an occasion of qualified privilege are stated at a high level of abstraction and generality, their application depends on "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; (at [54]) per McHugh J; Guise v Kouvelis [1947] HCA 13; (1947) 74 CLR 102 (at 116) per Dixon J. 71 McHugh J, who dissented in the outcome in Bashford, explained (at [53]) the essential concept of the defence of common law qualified privilege by reference to Toogood in the following terms (footnotes omitted): "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, professional or social connection, and the recipient of the statement has a corresponding duty to receive or interest in receiving it . Lord Campbell CJ stated the principle in Harrison v Bush as follows: '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 '." (emphasis added) 72 While the requirement that both the maker of the statement and the recipient must have an interest or duty in the making and receiving of the communication, draws attention to the need to have regard to the position of both parties when deciding whether an occasion is privileged, this should not obscure the rationale of the underlying public interest on which common law qualified privilege is founded: Reynolds v Times Newspapers Ltd [1999] UKHL 45; [2001] 2 AC 127 (at 195) per Lord Nicholls of Birkenhead. As his Lordship explained: "The essence of this defence lies in the law's recognition of the need, in the public interest, for a particular recipient to receive frank and uninhibited communication of particular information from a particular source. That is the end the law is concerned to attain. The protection afforded to the maker of the statement is the means by which the law seeks to achieve that end. Thus the court has to assess whether, in the public interest, the publication should be protected in the absence of malice. " (emphasis added) 73 In Bashford (at [137]), Gummow J emphasised that in Howe v Lees [1910] HCA 67; (1910) 11 CLR 361 Griffith CJ explained the statement in Toogood: "If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society."

as follows: "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 . It 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." (emphasis added) See also McHugh J (at [54]).

74 In Bashford, after explaining the nature of the defence, McHugh J added (at [58]): "…The court cannot determine these issues of duty and interest without characterising the subject matter of the defamation . It cannot judge whether the particular duty and interest are so necessary for the proper functioning of society that the occasion should be privileged - despite the harm that the communication may cause - unless it knows what is the nature of the defamatory communication that allegedly gives rise to the duty and interest ." (emphasis added) 75 McHugh J also emphasised (at [54]) the necessity to examine the circumstances of publication including the nature of the defamatory communication, the status or position of the publisher, the number of recipients and the nature of any interest they had in receiving it, and the time, place and manner of, and reason for, the publications. This scrutiny of the circumstances was required because (Bashford at [60]): "Although it is convenient for text book writers and sometimes judges to classify occasions of qualified privilege into broad categories such as replies to attacks and interests arising out of employment, … [t]he practical working of the doctrine … requires that the occasion be defined concretely and precisely. That ordinarily requires the interest of the recipient to be defined first, and to be defined concretely and precisely, although sometimes it is necessary first to define the duty in that way. Unless the interest is so defined, the issues of duty, occasion, relevance and malice cannot be determined - at all events correctly." 76 Thus his Honour emphasised (at [63]) the necessity for the Court, after considering all the circumstances, to "ask whether this publisher had a duty to publish or an interest in publishing this defamatory communication to this recipient" (emphasis in original) rather than merely "whether the communication is for the common convenience and welfare of society". 77 After considering these matters, the court makes a judgment as to whether the publisher and whether the recipients, or some of them, had a duty to receive or interest in receiving it: Bashford (at [54]). 78 Two propositions can conveniently be drawn from Moit v Bristow [2005] NSWCA 322 (at [75] - [77]) per McColl JA (Beazley JA and Campbell AJA agreeing): "75 The 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; Bashford at [71] per McHugh J. As Lane J said in Beach v Freeson [1972] 1 QB 14 at 25, 'it seems contrary to principle that the existence of qualified privilege should depend on the mistaken belief of the defendant'. 76 Furthermore, interest for the purpose of the law of qualified privilege means 'more than an interest in the information 'as a matter of gossip or curiosity'…[it] must be a social, moral or economic interest that is sufficiently tangible for the public interest to require its protection': Bashford at [71] per McHugh J. 77 Brennan J explained how the 'interest' established must transcend curiosity in Stephens v Western Australian Newspapers Limited [1994] HCA 45; (1994) 182 CLR 211 at 242, saying: 'When it is said that a publication is privileged because it is made in the public interest, 'interest' is not to be equated with curiosity. It is used in a non-technical sense to mean that the publication is made for the welfare of society. As Bedford's case illustrates, a publication defamatory of the plaintiff is not made on an occasion of qualified privilege merely because the person or persons to whom it is made - in that case, the readers of the newspaper - were interested in the subject matter'." 79 I would add to the passage extracted from Bashford (at [71]), McHugh J's approval of Evatt J's statement in Telegraph Newspaper Co Ltd v Bedford [1934] HCA 15; (1934) 50 CLR 632 (at 662) that the interest of the recipient must be "a real and direct personal, trade, business or social concern."

Establishing that a publication was made on an occasion of qualified privilege 80 In order to establish a publication was made on an occasion of qualified privilege the publisher must call evidence which establishes "that both the givers and the receivers of the defamatory information had a special and reciprocal interest in its subject matter, of such a kind that it was desirable as a matter of public policy, in the general interests of the whole community of New South Wales, that it should be made with impunity, notwithstanding that it was defamatory of a third party": Andreyevich v Kosovich (1947) 47 SR (NSW) 357 (at 363) per Jordan CJ; applied in Bashford (at [55], [58]) per McHugh J; (at [140]) per Gummow J. 81 The interest or duty of the maker of the communication to communicate the relevant material may be one that is legal, social or moral: Guise (at 110) per Latham CJ. In Bashford, Callinan J observed the limits on the ambit of the concept of duty and interest, saying: "232 The authorities speak of public and private duties, legal or moral. In truth there are few matters of any kind which in ordinary affairs divorced from business or official functions, one person is under a legal duty to communicate to another or others . Almost all of the cases on qualified privilege are ones in which the publisher of the statement seeks to rely upon the existence of a moral duty, and necessarily so, because a legal duty is non-existent . And it is because of the premium which the law places on freedom of speech that the concept of a moral duty has been generously regarded, and allowed to be extended to large commercial publishers, that is to say publishers avid for profit. That is not to say of course that the intrusion of commerce should in any way be a disqualifying factor. The reality is that much which is informative and is in the interest of society to learn, would not be communicated at all if it could not be communicated for profit." (emphasis added) Nature of the publication

82 The respondent argued that the matters complained of were not published on an occasion of qualified privilege, among other matters, because Cabbie was similar to a newspaper, as its contents were published to the world at large. 83 Because the interest of the recipients in receiving the defamatory communication said to have been published on an occasion of qualified privilege must be tangible and not vague or insubstantial, the defence usually applies to publication to a limited audience, not publication to the public at large. The courts have consistently rejected the existence of a duty on mass media publishers to communicate to readers or viewers on matters of public interest. In Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 (at 570-2) the Court said: "Only in exceptional cases has the common law recognised an interest or duty to publish defamatory matter to the general public ... apart from a few exceptional cases, the common law categories of qualified privilege protect only occasions where defamatory matter is published to a limited number of recipients. If a publication is made to a large audience, a claim of qualified privilege at common law is rejected unless, exceptionally, the members of the audience all have an interest in knowing the truth. Publication beyond what was reasonably sufficient for the occasion of qualified privilege is unprotected. Because privileged occasions are ordinarily occasions of limited publication - more often than not occasions of publication to a single person - the common law has seen honesty of purpose in the publisher as the appropriate protection for individual reputation.…But a test devised for situations where usually only one person receives the publication is unlikely to be appropriate when the publication is to tens of thousands, or more, of readers, listeners or viewers." 84 The "faltering and cautious history" of the application of common law qualified privilege to publications to the general public was traced in Morosi (at 775-778). The Court distinguished (at 779) publications to the "public at large" from "publications in newspapers which are truly enlarged circulars, not available to the public generally, but only to particular classes of persons". Giving an illustration of a publication to members of a trade union (Wells v Croskery [1952] NZLR 312), the Court said that in such cases it was sufficient if the relevant duty or interest was shown to exist in relation to the identified persons to whom the publication was made. In such circumstances "the necessary duties or interests can be looked for with some feeling of confidence". 85 There is, however, no rule capable of mechanical application denying media outlets recourse to the traditional category of qualified privilege and, in principle, it remains available: Lewincamp v ACP Magazines Ltd [2008] ACTSC 69 (at [201]) per Besanko J. That this was so was demonstrated in Bashford (at [187]) where the majority (Gleeson CJ, Hayne and Heydon JJ; Gummow J and Kirby J agreeing in separate judgments; McHugh J and Callinan J dissenting) held that defamatory statements published in an article in a trade newsletter sold to subscribers were published on an occasion of qualified privilege. The necessary reciprocity of duty and interest was found to exist in the following circumstances. 86 First, the publication, the Occupational Health and Safety Bulletin, concerned workplace health and safety, a subject "important to society as a whole", so that dissemination of information about that subject to those responsible for it advanced the common convenience and welfare of society. Secondly, the matter of which complaint was made concerned the use which persons other than the copyright owner might make of material safety data sheets containing safety information about hazardous materials, material the majority concluded (at [25]) concerned how to keep people safe from workplace injury. Thirdly, and clearly influential in the majority's view in distinguishing the Bulletin from a mass media publication, was the narrow focus of both its subject matter and readership: "26 … Because its subscribers were only those responsible for occupational health and safety matters, and because it dealt only with those matters, there was that reciprocity of duty or interest between maker and recipient which attracted qualified privilege. The circumstances of publication were, therefore, very different from those in which the general news media deal with matters of political or other interest. The premise for the development of the common law that was made in Lange v Australian Broadcasting Corporation was that only in exceptional cases had the common law recognised a duty to publish or interest in publishing defamatory matter to the general public. To hold that the occasion of publication of the matter complained of in this matter was privileged does not challenge that premise. In the present matter there was no publication to the general public ." (emphasis added) 87 Gummow J's approach was similar. He concluded (at [144]) that the Bulletin discussed Federal Court litigation that had a direct bearing upon the enforceability of copyright in material safety data sheets which could be expected to be of significant interest to those responsible for health and safety in the workplace. Accordingly (at [145]), and given the general interest of the community reflected in the consistent legislative recognition of the importance of furthering occupational health and safety in Australia, he concluded the publisher had a duty to provide subscribers with the information contained in the Bulletin. His Honour disposed of the reciprocity point shortly, concluding (at [149]) that as subscribers to the Bulletin were, "in large part" persons responsible for occupational health and safety in their respective workplaces who sought the information contained in the matter complained of with respect to that topic to assist them in complying with their statutory obligations, their interest in receiving the information in the matter complained of could not be regarded as "unsubstantial" or "remote". 88 Gummow J was also of the view (at [149]) that the matter complained dealt with a topic to which the interest of the subscribers related, "being the refusal of injunctive relief with respect to copyright in material safety data sheets, one result of which could be the increased publication of those data sheets within the workplace". As that issue "encompassed the claim of contravention of s 52 of the [Trade Practices Act] concerning which the defamatory imputation was made … the defamatory imputation was made upon an occasion of qualified privilege".

89 The majority was of the view that the fact the respondent voluntarily embarked on its publishing venture and charged subscribers for its Bulletin required no different answer. Thus, unlike in Macintosh, no adverse consequence followed from the publisher having a motive to profit from the publication. This was because the subject of the Bulletin was not "the characters of other people" (Macintosh (at 306) per Lord Macnaghten), but how to keep people safe from workplace injury: Bashford (at [25]); see also (at [146] - [147]) per Gummow J. 90 Kirby J (at [190]) eschewed "dubious efforts to distinguish Macintosh, or to await its correction by statute". In his view: "In particular circumstances, of which the present is an instance, the payment of a fee to the publisher for the information provided may actually reinforce the necessary element of reciprocity. If there is salaciousness or malice in a publication purchased for fee, any qualified privilege otherwise attaching may be lost for such reasons. The salaciousness or malice may snap the connection with the propounded subject matter . They may contradict the propounded interest and duty. But qualified privilege will not be lost for the payment of the fee as such." (emphasis added) 91 McHugh J dealt with the issue of voluntary defamatory communications in the following terms (footnotes omitted): "73 … Ordinarily the occasion for making a volunteered statement will be privileged only where there is a pressing need to protect the interests of the defendant or a third party or where the defendant has a duty to make the statement to the recipient. The common law has generally perceived no advantage to society in giving qualified privilege to volunteered statements in the absence of a pre-existing reciprocity of interest between the defendant and the recipient. It has taken the view that the reputation of the defamed should be preferred over the freedom to publish volunteered but defamatory statements that may or may not be true. In most cases, a defendant who publishes a defamatory statement that neither protects his or her interests nor answers a request for information will have to rely on some other defence, such as truth or fair comment." (emphasis added) 92 In his Honour's view (at [77]), "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". Tobias JA (with whom Giles JA and Handley AJA generally agreed) referred with approval to these passages from McHugh J's judgment in Goyan v Motyka [2008] NSWCA 28 (at [86]). 93 McHugh J accepted (at [81]) that Macintosh did not hold that qualified privilege could not attach to a communication made for profit. In his view: "The real basis of the decision was that the welfare of society was not furthered by giving qualified privilege to defamatory communications, whether true or untrue, made by a publisher who was a volunteer, who was not discharging any moral duty and whose sources might be unreliable or malicious, simply because of the business interest of the publisher. That the communication was made for profit is relevant in determining whether the occasion was actuated by a social or moral duty and at common law was once likely to be decisive in determining whether the occasion was privileged. Nowadays, however, it is probably better in most cases to regard the issue of profit motive as neither advancing nor impairing a claim for qualified privilege. That is to say, its presence does not ordinarily indicate that the defendant was not discharging a duty or protecting an interest that the common law will recognise." (emphasis added)

Relevance of the defamatory imputation to the defence of common law qualified privilege

94 The appellant argued that the common law defence of qualified privilege does not go to the imputations, but to the publication by which they were conveyed. The respondent submitted that as the imputation is the plaintiff's cause of action (s 9, 1974 Act), the Court should consider each imputation the jury finds has been conveyed in determining whether the defence should succeed. 95 It is helpful, in my view, to consider first the position at common law of the relevance of the defamatory imputation to the defence of common law qualified privilege, then turn to the 1974 Act. 96 At common law, a plea that defamatory matter was published on an occasion of qualified privilege is a plea of confession and avoidance. As McHugh J said in Bashford (at [58], see also [64]), the defence: "….accepts that the communication is defamatory, that the defamatory matter may be false and that its publication has caused or may cause harm to the plaintiff. It confesses the publication of defamatory matter, but contends that the publication is immune from liability because the public interest requires that the duty and interest of the publisher and recipient should be preferred to the protection of the plaintiff's reputation." 97 Gummow J also observed (Bashford at [135]) that "[t]he defence of qualified privilege is a plea in confession and, as such, is predicated upon the existence of a defamatory imputation to which the privilege attaches".

98 In Chakravarti v Advertiser Newspapers Limited [1998] HCA 37; (1998) 193 CLR 519 (at 527) Brennan CJ and McHugh J considered the nature of the defence of privilege pursuant to s 7(1) of the Wrongs Act 1936 (SA) for a fair and accurate report of a meeting of a royal commission. Their Honours couched their observations in language which recognised that the statutory defence reflected a common law defence of privilege. The question whether the statutory defence in fact reflected a common law defence of privilege was left moot by Gaudron and Gummow JJ (at [88] - [90]); cf Kirby J (at [149] - [152]). 99 Brennan CJ and McHugh J said (at [2]): "…[W]here a defendant pleads a defence of fair and accurate report in answer to an action for defamation, it is necessary for the tribunal of fact to determine what meanings the publication has before it determines the fairness of the report. The reason for that is that, until the defamatory meaning of the publication is determined, it is not possible to know whether the report is an answer to the plaintiff's claim. A defendant does not lose a defence of fair and accurate report because it is inaccurate in respect of a distinct defamatory imputation which the plaintiff does not sue upon. A plea of fair and accurate report is a plea in confession and avoidance of the plaintiff's claim. Until the plaintiff's claim is defined, the tribunal of fact cannot know what the plea confesses and avoids . Nor can the Court determine whether the report in defaming the plaintiff is nevertheless fair." (emphasis added) 100 They explained (at [4]) the significance of determining the defamatory meaning when considering the fairness of the report as follows: "Where a defamatory imputation is alleged to arise out of a word or phrase or its implication, it may make little practical difference whether the tribunal considers the fairness of the report before it considers the meaning of the word or phrase. But where, as is often the case, the imputation is an inference drawn from various paragraphs or sections of a publication, it invites error, in our view, to attempt to determine whether the report is fair before determining the defamatory imputation. " (emphasis added) 101 Next, their Honours considered, and rejected, the proposition that a defence in the form of that approved in Polly Peck (Holdings) Plc v Trelford [1986] QB 1000 could be pleaded at common law. As Handley JA pointed out in John Fairfax Publications Pty Ltd v Zunter [2006] NSWCA 227 (at [42]), while their Honours' dicta did not receive the express endorsements of the other members of the Court, it has been followed by intermediate appellate courts in Victoria, Western Australia and South Australia. Those authorities were followed by this Court in John Fairfax Publications Pty Ltd v Hitchcock [2007] NSWCA 364.

102 Brennan CJ and McHugh J pointed out (at [8]) that the Polly Peck approach was "contrary to the basic rules of common law pleadings and in many contexts [would] raise issues which can only embarrass the fair trial of the action". They explained: "Leaving aside technical pleas such as pleas in abatement, defences are either by way of denial or confession and avoidance. A defence which alleges a meaning different from that of the plaintiff is in the old pleading terminology an argumentative plea of Not Guilty. Under the principles of pleading at common law, it could tender no issue and would be struck out as embarrassing. Under the modern system, articulating an alternative meaning could conceivably make explicit the ground for denying a pleaded imputation. But it would be only in such a case that a defendant's plea of a new defamatory meaning might be supportable as a plea which prevents the plaintiff being taken by surprise. A plea of justification, fair comment or qualified privilege in respect of an imputation not pleaded by the plaintiff does not plead a good defence. It is immaterial that the defendant can justify or otherwise defend the meaning which it attributes to the publication ." (emphasis added) 103 Thus Brennan CJ and McHugh J regarded the common law defences of justification, fair comment and qualified privilege as all being pleaded to the defamatory imputation the plaintiff pleaded. This is consistent with McHugh and Gummow JJ's observations in Bashford. 104 Initially "the law of fair comment was regarded as part of the doctrine of qualified privilege". It was only from the second half of the nineteenth century that it was recognised as a "defence" that was independent of that doctrine: Bellino v Australian Broadcasting Corporation [1996] HCA 47; (1996) 185 CLR 183 (at 215) per Dawson, McHugh and Gummow JJ. 105 This common historical origin has significance when considering Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60; (2007) 232 CLR 245 in which the Court considered the question whether the meaning pleaded by the plaintiff was relevant to the defence of fair comment pleaded by the defendant. 106 Gummow, Hayne and Heydon JJ (with whom Gleeson CJ (at [2]) and Kirby J (at [108] - [109]) agreed on this issue) rejected the contention that the defence of fair comment was not directed to the meaning pleaded by the plaintiff. In their view (at [83]): "…the defendant's contention that in this case the meaning pleaded by the plaintiff is irrelevant to the defence of fair comment at common law is wrong. It is wrong because by the time the trial judge comes to consider the fair comment defence the question of meaning will have been decided adversely to the defendant. The meaning found is the comment to be scrutinised for its fairness ." (emphasis added) 107 As their Honours also explained (at [83]) the questions whether the ordinary reasonable viewer would have understood that the meaning found to have been conveyed was conveyed as comment, whether that meaning was objectively fair and whether it was based on true facts, each had to be answered by treating the comment as being "the 28 words in the meaning which the court found". They also observed: "85 Another flaw in the defendant's position is that the defendant accepts, correctly, that the meaning of defamatory words is relevant to the fair comment defence in several ways: in determining whether the comment is fair; in determining the issue of malice, to which an absence of honest belief in the proposition stated is relevant; in determining whether the plaintiff's pleaded meaning was conveyed as a statement of fact or a statement of opinion; in determining whether the plaintiff's pleaded meaning and the defendant's comment relate to the same allegation; in determining whether the comment is based on facts which are true or protected by privilege, a question which cannot be answered without assessing what the comment means; and in determining whether the comment relates to a matter of public interest, which also depends on its meaning. It would be anomalous if the meaning of the comment is relevant in all these respects, but not relevant in an assessment of whether it responds to the meaning of the promotion pleaded by the plaintiff.

86 Finally, the defendant's submissions would lead to an injustice. In this case the defendant's submissions would lead to the conclusion that if the plaintiff establishes the meaning pleaded, he will have been accused of deliberately concealing evidence, while the defendant will escape liability by saying merely that he was incompetent and mistaken in various respects . There is a great gulf between displaying incompetence and deliberately concealing evidence." (emphasis added) 108 The conclusion in Manock has significant analogical force in relation to the question of the relevance of the imputation to the defence of qualified privilege. Accepting, as I do, the correctness of the view Brennan CJ and McHugh J expressed in Chakravarti (at [8]), the decision in Manock compels the conclusion that the common law defence of qualified privilege is directed to the imputation pleaded by the plaintiff and found to have been conveyed. 109 I turn to the 1974 Act, s 9(2) of which gives a person defamed by the publication of an imputation a cause of action in respect of that imputation against the publisher for the publication of that matter to its recipient.

110 The repeal of the Defamation Act 1958 and the reinstatement by s 4(2) of the 1974 Act of the common law restored common law qualified privilege as a defence in New South Wales defamation actions: Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 (at 772). Reference should also be made to Part 3 of the 1974 Act which dealt with defences. Section 11 which appeared in that Part provided that the provision of a defence by that Part did not vitiate, diminish or abrogate any defence or exclusion of liability available apart from the 1974 Act. 111 The Report on Defamation (New South Wales Law Reform Commission, Report 11) which drafted and recommended the adoption of, the 1974 Act, advised (at [88]) that subject to exceptions which dealt with the statutory defence under s 22, the Bill which became the 1974 Act left to the common law the question whether an occasion was one of qualified privilege and whether a publication made on such an occasion was entitled to protection. 112 The Report did not discuss the relationship between the s 9(2) cause of action and the common law defence of qualified privilege. However, in my view, once it is understood that the common law defence of qualified privilege had to be pleaded to the plaintiff's imputation (Chakravarti (at [8])), it is apparent that the Commission would have perceived that the same position would operate under the new scheme. In other words, consistent with the scheme of the 1974 Act, the common law defence of qualified privilege would be pleaded to the plaintiff's s 9(2) imputation. 113 The question whether the statutory defence of comment available under Pt 3, Div 7 of the 1974 Act was pleaded to the imputation was the subject of early controversy. In Petritsis v Hellenic Herald Pty Ltd [1978] 2 NSWLR 174 (at 193) Samuels JA held that the defence of comment, although accepting that the comment is defamatory, was not concerned with the precise nature of the defamatory meaning or imputation, but was directed to the matter as defined in s 9(1). Gummow, Hayne and Heydon JJ referred to Petritsis in Manock (at [81]). They noted that Samuels JA's conclusion ceased to represent the law in relation to the statutory fair comment defence by virtue of a series of cases, to which they referred with apparent approval: David Syme & Co Ltd v Lloyd [1984] 3 NSWLR 346 (at 356-358 and 361), Lloyd v David Syme & Co Ltd 1985) 3 NSWLR 728; Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448 (at 470 - 471) and New South Wales Aboriginal Land Council v Perkins (1998) 45 NSWLR 340. 114 In Perkins, Priestley JA held that the defence of comment was directed to those defamatory imputations pleaded by the plaintiff and the comment must be conveyed by the defamatory imputations the jury finds to have been established. Meagher JA (with whom Sheppard AJA agreed) reached the same conclusion, holding (at 349) that: "After the 1974 Act a plaintiff no longer sued on the publication, but on the imputations which he alleged arose from it. Each imputation was a cause of action. Consequently, one would have thought, any successful defence must be a defence to the imputation . Otherwise the defendant would be answering a cause of action which the plaintiff does not rely on (viz the publication), and the cause of action on which he does rely (viz the imputation) would go unanswered." (emphasis added) The only real point of departure between Priestley JA and Meagher JA was that the latter thought (at 349 - 350) that the question of whether the defence went to the imputation or the matter complained of had been left confused by Radio 2UE Sydney Pty Ltd v Parker , whereas the former thought (at 344 - 345) that once the reasoning in Parker was understood, it was consistent with his and Meagher JA's conclusions. 115 In my view, Meagher JA's statement as to the significance of the imputation being the cause of action in terms of the defences available under the 1974 Act, albeit dicta (the case considered only the statutory defence of comment) are persuasive on the issue under consideration. Insofar as common law qualified privilege is concerned, his Honour's observation is, of course, consistent with the authorities to which I have referred. 116 I would conclude that for the purposes of the 1974 Act, the common law defence of qualified privilege must be pleaded to the imputation, not merely the matter complained of. 117 Fullerton J reached a different conclusion in Aktas v Westpac Banking Corp Ltd [2007] NSWSC 1261, holding (at [54]) that the defence of qualified privilege at common law fell to be considered by reference to the matter complained of and not by reference to the imputations found by the jury to arise from that publication. Her Honour (at [61]) did not understand the statement made by Meagher JA in Perkins to which I have referred, as intended to extend to the common law defence of qualified privilege. She took comfort (at [57]) from the absence of reference to common law qualified privilege in statements in various cases in which the defences of truth, contextual truth and, again, comment were said to be referrable to the imputations: see John Fairfax Publications Pty Ltd v O'Shane [2005] NSWCA 164 (at [21] and [36]) per Giles JA and Greek Herald Pty Ltd v Nikolopoulos [2002] NSWCA 41; (2002) 54 NSWLR 165 (at [19]) per Mason P. 118 Her Honour also appeared to accept a submission by the defendant that common law qualified privilege went to the matter complained of and not by reference to the imputations because in Sims v Wran [1984] 1 NSWLR 317 where Hunt J reviewed the particulars that were required to be given by operation of Part 67 of the Supreme Court Rules 1970, in dealing with common law qualified privilege and statutory qualified privilege his Honour did not specify either defence had to be directed to the imputations. Sims v Wran concerned an issue of particulars. Hunt J did not purport to address the elements of each defence and, in particular, whether or not it was directed to the matter complained of or the imputation. 119 Her Honour also noted that the defendant referred to Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 (at [119]) where in the course of a review of the role of imputations under the 1974 Act generally, Hunt AJA (Santow JA agreeing, Basten JA not deciding) when considering the importance of the plaintiff's imputations, noted that the defence of statutory qualified privilege is not pleaded to the plaintiff's imputations and did not refer to common law qualified privilege, despite the apparently exhaustive nature of the list. Hunt AJA's comments were dicta being directed to an issue which concerned "a new pleading practice in defamation litigation developed since the introduction of s 7A jury trials": Harvey (at [118] ff). 120 Further Hunt AJA did not refer to Perkins, but reiterated the view in Petritsis, that the defence of comment pursuant to Division 7 of the Act is not pleaded to the plaintiff's imputations. Finally his Honour's remarks were expressed at a high level of generality. Looking, for example, at his statement that the defence of statutory qualified privilege is not pleaded to the plaintiff's imputations it should be recalled, as he himself explained (Samuels JA agreeing) in Morgan v John Fairfax & Sons Ltd (No 2) (1991) 23 NSWLR 374 (at 387), that in order to establish the s 22(1)(c) element of the defence of statutory qualified privilege, the defendant had to establish, inter alia, that its conduct in publishing each imputation found to have been conveyed by the matter complained of was reasonable in the circumstances. 121 Fullerton J also appears to have accepted (at [62]) the defendant's submission that the plaintiff's argument elided the question of whether the publication is on an occasion of qualified privilege with the question of whether the occasion has been used excessively such that the protection of the privilege falls away. The issue of excessive publication properly so-called, goes to the question whether the matter complained of has been published to uninterested persons not within the embrace of any identified corresponding duty and/or interest: see P Milmo and W V H Rogers, Gatley on Libel and Slander, 10th ed (2004) Sweet & Maxwell (at [14.67] ff), ("Gatley"). 122 It is possible, however, that her Honour was dealing with the issue of the relevance of the imputation to the occasion of qualified privilege. It is clear that defamatory statements which are irrelevant to the privileged occasion are not protected: Bellino (at 228). However that does not detract from the proposition that the defence is directed to the imputation, not the matter complained of. The position was made clear, in my view, by Gummow J in Bashford (at [135]) where his Honour rejected the proposition that the defence is approached first by determining whether the matter complained of was published on an occasion of qualified privilege and only then whether the defamatory imputation, although not contained within the principal part of the article, nevertheless, was relevant to it. As his Honour explained: "It is clear that both the primary judge and the Court of Appeal proceeded on the assumption that it was first necessary to establish that the principal part of the article was published on an occasion of qualified privilege and only then to consider whether the defamatory imputation, although not contained within the principal part of the article, nevertheless, was relevant to it. In my view, such an approach requires caution. The defence of qualified privilege is a plea in confession and, as such, is predicated upon the existence of a defamatory imputation to which the privilege attaches. To speak of qualified privilege attaching to a non-defamatory statement is to ignore this fundamental characteristic . It follows that questions of relevance, in the sense in which that term was used by the judges below, will ordinarily only arise where two or more defamatory imputations are published on a single privileged occasion . In such circumstances, it will be necessary to determine whether each imputation falls within the umbrella of the applicable privilege or whether one of the imputations is not relevant and, therefore, not covered by the defence . In the present case, only one defamatory imputation has been found to have been conveyed. It is therefore necessary to consider whether that imputation was made on an occasion giving rise to a defence of qualified privilege arising out of a reciprocal duty or interest." (emphasis added)

I would, with respect, draw a different conclusion from that Fullerton J drew (at [63]) in relation to this statement. 123 Finally I note it does not appear Fullerton J was referred to the passages from Chakravarti to which I have referred. Nor did she have the advantage of reading Manock, it having been decided a month after her Honour gave judgment. 124 In my view Aktas was wrongly decided on this point. It is consistent with the context, the general purpose and policy of the 1974 Act (Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355) that a defendant relying on common law qualified privilege in relation to a s 9(2) imputation must establish that that imputation was published on the occasion of qualified privilege, not just that the matter complained of was so published. Connection with a privileged occasion 125 This conclusion is consistent with the principle to which I have already referred that privilege only attaches to those defamatory imputations that are relevant to the privileged occasion: Bellino (at 228) per Dawson, McHugh and Gummow JJ. 126 In Adam v Ward (at 318) Lord Finlay LC said: "The privilege extends only to a communication upon the subject with respect to which privilege exists, and it does not extend to a communication upon any other extraneous matter which the defendant may have made at the same time. The introduction of such extraneous matter may afford evidence of malice which will take away protection on the subject to which privilege attaches, and the communication on the extraneous matter is not made upon a privileged occasion at all, inasmuch as the existence of privilege on one matter gives no protection to irrelevant libels introduced into the same communication." 127 In Bellino (at 202) after referring to this passage, Brennan J said: "The 'extraneous matter' may fail to gain protection for either of two reasons: the publication of the defamatory matter may be held to fall outside the occasion of qualified privilege - a question for the judge - or the defamatory matter may show, in the context of the whole publication, express malice so as to destroy the privilege - a question for the jury."

and (at 204): "Protection for such a statement…is determined by the positive criterion of relationship to or nexus with the relevant subject of public interest. That criterion is not satisfied unless the publication of the defamatory matter makes a contribution to the discussion of the subject of public interest." 128 In Bashford v Information Australia (Newsletters) Pty Limited [2001] NSWCA 470 (at [43]) Hodgson JA concluded that "material communicated on the privileged occasion will have the protection of the privilege unless it is truly unconnected with the subject matter of the occasion". Sheller JA agreed with Hodgson JA because, in his view (at [1]), "the matter complained of was connected and sufficiently connected with the subject matter of the privileged occasion". Hodgson JA referred (at [36], [39]), with approval, to statements in Adam v Ward (at 320-321 per Earl Loreburn, at 348 per Lord Shaw of Dunfermline) to the effect that the Court had to consider whether the publication was "germane and reasonably appropriate to the occasion", a test Sheller JA also approved (at [2]). 129 Rolfe JA accepted Hodgson JA's formulation of the connection test, but dissented as a matter of fact because, in his view (at [56]) the defamatory statement was "truly unconnected with the subject matter of the occasion". 130 In Bashford in the High Court, the majority dealt with the "connection" issue by reference to how the issue had been resolved in the Court of Appeal and clearly approved (at [27]) Sheller JA's statement that a sufficient connection to the occasion of qualified privilege would attract the defence. They concluded such connection was established because (at [29]), the parts of the matter published which defamed the appellant related to the use that persons other than the copyright owner might make of material safety data sheets, a subject in turn "evidently connected to occupational health and safety". They concluded that the defamatory matter related to the subject: "[B]ecause it, like the rest of the matter published, concerned the use that others might make of material safety data sheets. It said that to assert that there had been 'successful[] prosecut[ion] for MSDS copyright infringement' had been held to be 'false and misleading conduct'. That the article wrongly identified the appellant as having published this assertion did not alter or reduce the connection between the privileged occasion and the defamatory matter." 131 Thus the majority concluded: "30 Communication of the statement, that to assert successful prosecution for MSDS copyright infringement had been held to be false and misleading conduct, fulfilled the reciprocal duties or interests of the parties in the communication of information about occupational health and safety." 132 Kirby J observed (at [193] - [194]) that while "[v]arious judicial formulae ha[d] been propounded to mark out the boundaries of the protection given by the relevant privilege", and all were "attempts to define the boundaries of a discussion that is truly within the scope of the matter of public interest, so as to exclude the introduction of extraneous, irrelevant or marginal and gratuitous imputations that unacceptably do harm to the reputation and honour of an individual", "[s]cientific precision [was] impossible by the use of such formulae" and "[i]n every case, a judgment is evoked". In his view (at [196]), "[i]n order to secure the alternative defence of qualified privilege, it remains in each case for the publisher to demonstrate that the defamatory imputations are 'relevant to the privileged occasion' ". 133 Callinan J also approved (at [235]) Sheller and Hodgson JJA's formulation of the "connection" test, but held (at [240]) that the issue in the Federal Court proceedings in which context the defamatory imputation was published, was "of only the most peripheral relevance". 134 It has been said that there is some theoretical difficulty between the proposition that irrelevant statements are outside the privilege (Adam v Ward) and malice: Gatley (at [14.61]). This was touched on in Skalkos v Assaf [2002] NSWCA 14; (2002) Aust Torts Reports ¶81-644 (at [28]-[29]) where, after referring to the passage from Bellino (at 228) to which I have referred, Mason P observed that that passage demonstrated "that there is overlap between matters going to the question of malice and matters going to the question whether the publication complained of was within the protection of a claimed occasion of privilege". His Honour returned to the issue of extraneous and irrelevant material as follows: "40 In the seminal case of Adam v Ward , characterisation of matter as extraneous and irrelevant was seen as directly pertinent to the issue whether the communication in question was made upon the privileged occasion (see at 318, 327, 320-21, 328-9, 339-40, 348 and see generally Gatley on Libel and Slander 9th ed par 14.59). In his summation of the law in this area in Mowlds v Fergusson (1939) 40 SR (NSW) 311 Jordan CJ said (at 318): 'If anyone complains that the communication defames him, the burden of proof lies on the complainant to establish either that the defamatory matter was irrelevant to the purposes of the occasion or else that it was made in order to serve some other purpose than the purposes warranted by the occasion.' 41 See also McLean v David Syme & Co Ltd (1970) 72 SR(NSW) 513 at 530 per Mason and Manning JJA, Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 200-1 per Gaudron J, Liquor Marketing Group v Sadler [2000] NSWCA 161 at [56]. 42 The grossness of the falsity of the publication is pertinent to this issue of relevance. The defendants' particulars asserted that 'members of the public had an interest in knowing the facts and matters stated' in the letter. This alone makes the factual accuracy of the matters stated relevant to the issue of abuse of the occasion of privilege. And clearly established dishonesty is in turn capable of casting light on this inquiry. To describe an allegation as a 'splenetic and false attack' (at [194]) is really just a colourful way of emphasising the extraneity of the particular defamatory imputations to the professed context of the letter. The jury's rejection of malice did not pre-empt the judge from concluding, in the particular case, that the privileged occasion was abused (see Guise v Kouvelis (1947) 74 CLR 102 at 117, Bellino at 200-1)." (emphasis added) 135 Giles JA referred (at [129]) with apparent approval to Mason P's discussion of the authorities dealing with common law qualified privilege, then said: "130 It must be remembered that the inquiry into relevance of the defamatory imputation to the occasion, whether expressed in those terms or in the various other ways to be found in the cases, is intended to distinguish between an imputation which should not bring liability for defamation and one which should. As in so many other areas of the law, the function of attribution of legal responsibility necessarily affects the inquiry (causation is a well-known illustration, see March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 at 516-7, 523-4; Environment Agency v Empress Car Co (Albertilly) Ltd (1999) 2 AC 22 at 29-31). The inquiry is not a mechanical application of a form of words. Something may be privileged although untrue, irrational, or intemperately expressed. But that it is untrue, irrational or intemperately expressed may warrant the conclusion, or contribute to the conclusion, that the protection of the privilege should not be afforded. Absence of malice does not mean that all that is published is within the occasion of privilege . 131 In the present case there may have been an interest in the readers of Novosti in the efficient and cost effective communication of government advertising and information, which the defendants were entitled to satisfy. In satisfying the interest they could publish under the protection of privilege material defamatory of the plaintiffs, within limits marked by the relevance of any defamatory imputation to the occasion . But in determining whether they exceeded the limits it must be relevant to take into account the truth, rationality and manner of expression of what was published, because in the end a judgment must be made : was the publication in such circumstances that, according to the test of relevance to the occasion (or other expression) the imputation should bring liability for defamation? 132 … The defendants were entitled to inform the readers of Novosti, to satisfy the interest earlier mentioned, and to be critical of the plaintiffs in doing so. They could be wrong or irrational in what they said, and could use strong language. But the combination of falsity, irrationality and extreme language - the first and third imputations were very serious - could mean that what was conveyed was not 'relevant and pertinent to the discharge of the duty or the exercise of the right or the safeguarding of the interest which creates the privilege', see Adam v Ward (1917) AC 309 at 321." (emphasis added)

Malice 136 Where a publisher uses an occasion of qualified privilege for a purpose or motive foreign to the duty or interest that protects the making of the statement and that purpose actuates the making of the statement, the publisher is said to be guilty of express malice. Proof of express malice, being "any improper motive or purpose that induces the defendant to use the occasion of qualified privilege to defame the plaintiff", destroys qualified privilege: Roberts v Bass (at [75]) per Gaudron, McHugh and Gummow JJ. 137 In Roberts v Bass (at [76]), Gaudron, McHugh and Gummow JJ were careful to distinguish express malice from other states of mind, saying (footnotes omitted): "Improper motive in making the defamatory publication must not be confused with the defendant's ill-will, knowledge of falsity, recklessness, lack of belief in the defamatory statement, bias, prejudice or any other motive than duty or interest for making the publication. If one of these matters is proved, it usually provides a premise for inferring that the defendant was actuated by an improper motive in making the publication . Indeed, proof that the defendant knew that a defamatory statement made on an occasion of qualified privilege was untrue is ordinarily conclusive evidence that the publication was actuated by an improper motive. But, leaving aside the special case of knowledge of falsity, mere proof of the defendant's ill-will, prejudice, bias, recklessness, lack of belief in truth or improper motive is not sufficient to establish malice. The evidence or the publication must also show some ground for concluding that the ill-will, lack of belief in the truth of the publication, recklessness, bias, prejudice or other motive existed on the privileged occasion and actuated the publication . Even knowledge or a belief that the defamatory statement was false will not destroy the privilege, if the defendant was under a legal duty to make the communication. In such cases, the truth of the defamation is not a matter that concerns the defendant, and provides no ground for inferring that the publication was actuated by an improper motive. Thus, a police officer who is bound to report statements concerning other officers to a superior will not lose the protection of the privilege even though he or she knows or believes that the statement is false and defamatory unless the officer falsified the information . Conversely, even if the defendant believes that the defamatory statement is true, malice will be established by proof that the publication was actuated by a motive foreign to the privileged occasion. That is because qualified privilege is, and can only be, destroyed by the existence of an improper motive that actuates the publication ." (emphasis added) 138 Their Honours emphasised (at [79]) that "malice means a motive for, or a purpose of, defaming the plaintiff that is inconsistent with the duty or interest that protects the occasion of the publication" and that "[i]t is the motive or purpose for which the occasion is used that is ultimately decisive, not the defendant's belief in the truth of the matter". 139 A lack of a positive belief in the truth of the matter complained of is not always conclusive. In Roberts v Bass (at [81]) Gaudron, McHugh and Gummow JJ referred to a statement by Griffith LJ in Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354 (at 362): "Words are often capable of more than one meaning, and because the jury may attach to them a defamatory meaning which the writer did not intend, it does not follow that the writer did not honestly believe in the truth of what he wrote and reasonably intended a different meaning to be given to his language."

Accordingly, they drew attention to two situations where a lack of positive belief might not destroy qualified privilege (at [82]): "The privilege is not curtailed if lack of belief in a particular meaning is merely some evidence from which it may be inferred in some circumstances that the defendant was actuated by an improper motive. Nor is it curtailed if one applies the doctrinally sound view of Cotton LJ that the question is not 'whether the defendant acted in the belief that the statements he made were true, but whether he acted as he did from a desire to discharge his duty [or interest]'." (footnotes omitted)

They also emphasised that the defendant's motive is decisive to the question of malice, to which the lack of a positive belief is a highly relevant, but secondary, consideration: "[79] As we have said, malice means a motive for, or a purpose of, defaming the plaintiff that is inconsistent with the duty or interest that protects the occasion of the publication. It is the motive or purpose for which the occasion is used that is ultimately decisive, not the defendant's belief in the truth of the matter. As Cotton LJ said in Clark v Molyneux: 'The question is not whether the defendant has done that which other men as men of the world would not have done, or whether the defendant acted in the belief that the statements he made were true, but whether he acted as he did from a desire to discharge his duty.' " (footnotes omitted)

140 On the other hand, a positive belief in the truth of the matter, or an "honest belief", will usually negative any inference of malice: Horrocks v Lowe [1975] AC 135 (at 149) per Diplock LJ. There are exceptions to this rule. One is where, notwithstanding his or her positive belief, the defendant used the occasion for some improper purpose, for example to give vent to his or her personal ill-will or spite towards the plaintiff rather than to perform a relevant duty or protect a relevant interest: Horrocks (at 150) per Diplock LJ. 141 Recklessness will only destroy qualified privilege by itself if it amounts to wilful blindness. In less extreme cases, recklessness in combination with other factors may provide cogent evidence that the defendant was acting for an improper purpose, especially where the recklessness is associated with unreasoning prejudice: Roberts v Bass (at [84] - [86]) per Gaudron, McHugh and Gummow JJ. Recklessness is to be distinguished from mere carelessness, impulsiveness or irrationality in arriving at a positive belief that the defamatory matter is true: Horrocks (at 150) per Diplock LJ. 142 A failure to inquire as to the truth of the defamatory material may make it easier to draw the inference that the defendant's intention was to injure the plaintiff at the time of publication: Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; (1966) 117 CLR 118 (at 125) per McTiernan J. The subsequent discovery by the defendant that the material published was untrue does not, for the purposes of the defence, require him or her to publish a correction or to make an apology because these matters do not go to the defendant's state of mind at the time of publication: Howe (at 372) per Griffith CJ. 143 The introduction of material irrelevant to the privileged occasion can also be evidence of malice: Bellino (at 228); cf Horrocks (at 151) per Diplock LJ.

144 Extravagant language can be evidence of an intention to injure the plaintiff: Spill v Maule (1869) LR 4 Exch 232 (cited in Calwell v Ipec Australia Ltd [1975] HCA 47; (1975) 135 CLR 321 (at 332) per Mason J). However, the defendant is not confined to saying what is strictly necessary to the occasion: Calwell (at 332); Adam v Ward (at 339) per Atkinson LJ. The significance of extravagant language will be a matter of impression depending on the facts of the case: Calwell (at 333). The courts should be cautious before finding malice based on this factor alone: Calwell (at 333); Adam v Ward (at 330) per Dunedin LJ.

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.

167 Each imputation, in my view, constituted an attack on the respondent's character. None was germane and reasonably appropriate to the occasion of qualified privilege of discussion of matters affecting the taxi industry generally. They attacked the respondent's personal characteristics as manager of Premier Cabs. In my view communication of those imputations did not fulfil any reciprocal duties and interests of the publishers and recipients in communicating information about the taxi industry. They were, to adopt Kirby J's phraseology (Bashford at [194]) "gratuitous imputations that unacceptably … harm[ed] the [respondent's] reputation and honour". 168 The second matter complained of, the February 2005 article, dealt with the fact the respondent had commenced defamation proceedings against the appellant. It identified each article sued on. It stated the action was "frivolous" and demonstrative of the respondent's irrationality. The substratum of fact, to the extent it can be discerned, concerned the appellant's beliefs about the methods the taxi industry "mafia" took vis-à-vis taxi drivers and operators. It did not clearly refer to any of the topics the primary judge identified as properly the subject of communications to the taxi industry: 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. It did touch lightly on reports the respondent had threatened not to renew operators' leases if they insured with a particular company, not Premier. However it primarily repeated the imputations the respondent had pleaded and, in respect of some (the reference to the respondent being a "a little Hitler") said there was "plenty of evidence to support" it. 169 The jury found that article conveyed the following imputations: (a) The plaintiff behaved in an irrational manner in that he commenced a frivolous legal action; (b) The plaintiff has sought to muzzle legitimate criticism of his conduct by resorting to a frivolous legal action; (c) The plaintiff relies on the fears of drivers of retaliation if they took a stand against him; (d) The plaintiff runs the taxi company, Premier, like a little Hitler, that is, in a dictatorial manner; and (e) The plaintiff is reacting to legitimate challenges to his hold over the taxi industry in an increasingly paranoid fashion. 170 Once again, I cannot conclude that any of these imputations was germane and reasonably appropriate to the occasion of qualified privilege of discussing matters affecting the taxi industry generally. The same conclusions apply to these imputations as apply to those conveyed by the first matter complained of.

171 In short, in my view, neither matter complained of was published on an occasion of qualified privilege. The evidence did not establish that both the appellant and the readers of Cabbie had "a special and reciprocal interest in its subject matter, of such a kind that it was desirable as a matter of public policy, in the general interests of the whole community of New South Wales, that it be made with impunity, notwithstanding that it was defamatory" of the respondent: Andreyevich (at 363). 172 I would reach the same conclusion if I examined the particular matters complained of in the manner approved by McHugh and Callinan JJ in Bashford.

173 That conclusion is sufficient to dispose of the appeal. However, against the possibility this conclusion may be incorrect, I consider the issue of malice.

Consideration: malice 174 Reviewing the primary judge's conclusions on malice involves a review of a fact-finding exercise and, accordingly is subject to the restraints which govern appellate review in that context. There was substantial cross-examination of the appellant and it is clear the primary judge formed an adverse impression of him as a witness. His conclusions are influenced by those impressions and difficult to disturb absent identification of incontrovertible facts or uncontested testimony to the contrary, or a conclusion that the primary judge's findings were glaringly improbable or contrary to compelling inferences: Fox v Percy (at [28] - [29]). The appellant does not challenge any of the primary judge's findings on malice on any of these bases, merely his application of legal principles to his findings. 175 Once it is recalled that his Honour concluded the appellant was actuated by ill-will in publishing the matters complained of, and that conclusion is not challenged, a challenge to his application of the law in my view is particularly difficult.

176 Mr Molomby of Senior Counsel, who appeared for the appellant, first submitted that the primary judge's finding of improper motive was erroneous because his Honour relied on recklessness and ill-will. He argued that recklessness requires a finding of wilful blindness, relying on Roberts v Bass. He noted that the primary judge found that the appellant had failed to make reasonable enquiry. He argued this constituted carelessness, not wilful blindness. He also argued that the primary judge's finding that the appellant believed in the truth of the assertions was incompatible with wilful blindness. On my reading of his Honour's judgment, he concluded the appellant's ill-will was the principal state of mind actuating the publications. This conclusion was sufficient to found a conclusion of malice: Roberts v Bass (at [76]). His Honour's observations about recklessness were made in relation to the earlier two articles. 177 Secondly, Mr Molomby submitted that the primary judge erred in finding that the appellant's dislike of the respondent was a motive or purpose foreign to the occasion of common law qualified privilege. He submitted that the appellant's dislike of the respondent (that being the ill-will the primary judge identified) was incidental to the occasion conferring qualified privilege and could not therefore be evidence of malice. He was unaware of any authority which supported this proposition. In my view it should be rejected. Often the best, and only evidence of the publisher's state of mind towards the subject of a publication will be found in the publication itself. There is no principle of law, in my view, which supports the proposition that because the conduct described in the publication has engendered the ill-will towards its subject, that state of mind should be ignored on the issue of malice. 178 Thirdly, Mr Molomby submitted that the primary judge was required to consider whether the improper motive he identified on the appellant's part was his dominant motive. He argued his Honour had failed to carry out that exercise. The issue of a dominant motive only becomes relevant where the judge concludes that the publisher was actuated by mixed motives. In my view the primary judge's reasons can only be read to mean his Honour concluded it was only the appellant's ill-will towards the respondent which actuated the publications. I discern no error in his Honour's conclusion in this respect. 179 Fourthly, Mr Molomby submitted that the primary judge should have given consideration to the appellant's evidence that his motive was to expose the intimidation and standover tactics of the respondent when he wrote the September article. In my view that issue can be disposed of by saying his Honour did not have to refer to all the evidence he relied upon to reach his conclusion. His conclusion on the issue of ill-will and its role in the publications demonstrated he rejected this evidence of the appellant.

180 Fifthly, Mr Molomby submitted that the primary judge erred because he found malice in relation to articles that were not defamatory, without a separate enquiry into the motive for the matters complained of. In my view the inquiry the primary judge undertook in relation to the two earlier articles was an appropriate method of discerning the appellant's state of mind prior to the publication of the matters complained of. I would not conclude his Honour failed to analyse whether the appellant's state of mind actuated the publication of the two matters complained of. His Honour's remarks sufficiently disclosed his conclusion that the appellant's ill-will towards the respondent persisted at the time of their publication as demonstrated in their language, content and the baseless allegations they included.

181 Finally, Mr Molomby submitted that the primary judge erred in relying on the appellant's description of the respondent's threat to sue him as frivolous, without taking into account that the respondent had no cause of action in relation to two of the three articles on which that threat was made. In my view this is a not a fair analysis of how his Honour approached this issue. It was not to the point whether or not the respondent had a cause of action in relation to each of the articles he originally sued upon. The point I discern his Honour to have been making was that the reference to those actions as "frivolous" was demonstrative of the appellant's ill-will towards the respondent.

Orders 182 I would dismiss the appeal with costs. 183 BASTEN JA: The subject matter and background to this appeal have been set out by McColl JA. I agree with her Honour's conclusion that the appeal must be dismissed. However, I would limit the basis for that conclusion to the challenge raised by the appellant to the finding of the trial judge, Barr J, that each of the publications was relevantly actuated by malice. In my view no basis has been established for setting aside that conclusion. 184 In adopting that approach, it is sufficient to assume that the publications each occurred on an occasion of qualified privilege. In taking that approach, it is proper to recognise that an issue raised by the respondent on his notice of contention will not be fully addressed. In some circumstances that approach would not be acceptable. At the very least, it is necessary for the Court to consider whether it is sufficient to deal with an appeal on the basis of one dispositive issue, without addressing other issues: see Kuru v State of New South Wales [2008] HCA 26; 82 ALJR 1021 at [12]. In criminal appeals, where a failure to deal with all issues may result in a person being incarcerated for longer than necessary, such a course should generally be avoided: see Cornwell v The Queen [2007] HCA 12; 232 CLR 260 at [105]. A similar conclusion may be reached in circumstances where the issue in dispute is the validity of a public instrument operating in rem: see Kimberly-Clark Australia Pty Ltd v Arico Trading International Pty Ltd [2001] HCA 8; 207 CLR 1 at [34]; Lockwood Security Products Pty Ltd v Doric Products Pty Ltd [2004] HCA 58; 217 CLR 274 at [105]. This is not such a case; rather the appeal, on which the appellant must succeed in order to overturn the judgment below, turns on a question of fact involving no matter of contentious principle, as to which there will now be the unanimous findings of four judges of the Court. 185 It is also a matter in which the judgment below involved an award of damages only marginally above an amount which would have required leave to appeal. The possibility that there might be a grant of special leave and a successful appeal to the High Court of Australia must be weighed against the principle of parsimony, which properly requires this Court to husband its resources. To deal with every issue raised by the parties would expand the length of judgments and delay justice, not only for the parties in the instant appeal but for litigants before the Court generally. Further, if applied generally, that approach would give rise to a plethora of dicta, the weight of which might vary depending upon the circumstances, including the care apparently given to issues not determinative of the matter. The legal effect of findings on a non-dispositive issue, for the purposes of an appeal, is a matter which may itself require further consideration: see Tarabay v Leite [2008] NSWCA 259 at [27]-[28]. 186 Finally, the analysis of relevant principles, as set out by McColl JA, seems to require resolution of the extent to which the joint judgment (Gleeson CJ, Hayne and Heydon JJ) in Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; 218 CLR 366 is to the same effect as the concurring judgments of Gummow J and Kirby J, and as to the extent to which an understanding of the relevant principles may still require reference to the separate reasons of the dissentients, McHugh J and Callinan J. In my view, that is an exercise upon which the Court should not embark unless it is necessary: in the present case it is not.

Identification of relevant purpose 187 The term "malice" is used in the context of qualified privilege in respect of the publication of a defamatory statement to identify a state of mind which, if it provides the dominant motive for making the defamatory statement, will defeat a defence of qualified privilege. In order to identify the scope of the term it is, therefore, necessary to identify the purpose which is sufficient to attract the privilege in the particular circumstances of the case. In one sense, that is to embark upon consideration of whether, and in what sense, an occasion of qualified privilege has arisen. 188 The language in which the general law identifies an occasion of qualified privilege is somewhat opaque. As expressed in the joint judgment (Gaudron, McHugh and Gummow JJ) in Roberts v Bass [2002] HCA 57; 212 CLR 1 at [62]: "The common law protects a defamatory statement made on an occasion where one person has a duty or interest to make the statement and the recipient of the statement has a corresponding duty or interest to receive it. Communications made on such occasions are privileged because their making promotes the welfare of society. But the privilege is qualified - hence the name qualified privilege - by the condition that the occasion must not be used for some purpose or motive foreign to the duty or interest that protects the making of the statement." 189 The conjunction of the terms "duty or interest" is unusual in the law. Generally speaking, duty implies an obligation or responsibility owed to another person, or class of persons. It may be contrasted with a right or interest, which is an entitlement of the individual, recognised and protected by law: see Commonwealth v Welsh [1947] HCA 14; 74 CLR 245 at 268 (Dixon J). In Horrocks v Lowe [1975] AC 135 at 149, Lord Diplock described the second limb of the test as positing the existence of "some interest of his own which he is entitled to protect" by making the defamatory statement. By contrast, the reference to duty was explained as "the existence of some public or private duty, whether legal or moral, on the part of the maker of the defamatory statement which justifies his communicating it". To identify a duty as "moral" is to indicate that it is not legally enforceable. The scope of the term may be contestable, but it seems to envisage a degree of cultural or social adherence to a set of values, and not merely an idiosyncratic belief held by the maker of the statement as to what conduct is required or appropriate. The objective element was made express in Howe and McColough v Lees [1910] HCA 67; 11 CLR 361 at 368-369, by Griffiths CJ, in a passage quoted by Gummow J in Bashford at [137]. However, that understanding is somewhat muddied by the use of the term "interest" as sufficient to cover the promotion (and not merely the protection) of the legitimate interests of the maker of the statement. 190 There are many situations in a democratically governed society with a free market economy in which the communication of information is of high public importance. Freedom of political communication was recognised in Lange v Australian Broadcasting Corporation [1997] HCA 25; 189 CLR 520; the need for a flow of financial information is recognised by the imposition of obligations of continuous disclosure in financial markets: see, eg, Corporations Act 2001 (Cth), Chapter 6CA. Economic competition relies on the ability of those operating in a particular market to make informed decisions based on information of a comparative nature. People engaged in trades, professions or other occupations have common interests which often require open means of communication for their protection and promotion. To be effective, such communications may, on occasion, involve defamatory statements of individuals having a connection with those common interests. 191 That qualified privilege can exist in relation to regular publications, whether newsletters, journals or other forms of communication, was recognised in Bashford. The relevant purposes of such publications may be identified at varying levels of particularity or generality. A decision as to the appropriate level may have significant consequences for the scope of the privilege, as was explained in unequivocal terms by McHugh J (in dissent) in Bashford at [57]-[60]. Indeed, the proper scope of the privilege will itself reflect a view as to the appropriate balance between protection of individual reputation and the openness of freedom of communication: Bashford at [202] (Kirby J). 192 For the purposes of this appeal it is sufficient to note the manner in which the joint judgment in Bashford posited the relevant questions and provided answers in the context of that case: "[23] Was there, in this case, that reciprocity of duty or interest between maker and recipient of the matter of which complaint was made which would make the occasion of its communication privileged? What legal, social, or moral duties or interests were engaged between the respondent as publisher and those subscribers to whom it published its Bulletin? [24] The respondent described its Bulletin, on the masthead of the publication and in the advertising material it distributed, as a 'plain English guide to workplace health and safety'. The subscribers to the Bulletin were persons responsible for health and safety in the workplace, not any wider audience. By accepting subscriptions, the respondent undertook to publish a periodical of the kind it described - a guide to workplace health and safety. The subject of the guide was rightly identified in the Court of Appeal as important to society as a whole. The dissemination of information about that subject to those responsible for it was rightly held by the primary judge and the three judges in the Court of Appeal as advancing the common convenience and welfare of society. The matter of which complaint was made concerned the use which persons other than the copyright owner might make of material safety data sheets containing safety information about hazardous materials." 193 In considering similar questions in the present case, the trial judge set out the circumstances existing in the taxi industry at [66]-[67], passages which have been quoted in full by McColl JA at [29] above. His Honour continued at [68]: "As the publications the subject of Mr Hyer's complaint show, substantial change continues to be made in or to be contemplated for the taxi industry. This case is concerned with three important such topics, namely 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. The evidence of the magazines published by the defendants and the messages and assertions passed on to Mr Lindholdt by persons engaged or employed in or associated with the taxi industry show that there is lively debate on topics germane to the conduct of the industry and the differing interests of those engaged in it." 194 His Honour's conclusions with respect to questions of duty or interest and reciprocity were set out in the following passages: "70 I think that the operators and drivers of taxis have an interest in being informed about such topics, which are the subject of debate in the industry. I think that the defendants have a reciprocal interest in publishing to affected persons news of and opinions about matters of current controversy. 71 It seems to me 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." 195 For the purposes of the appeal, those findings may be accepted, as may the finding that the distribution of Cabbie magazine "goes no further than is necessary" to bring it to the attention of interested persons: at [73] and [74]. 196 Accordingly, his Honour considered that the publications containing the defamatory material were made on occasions of qualified privilege and turned to consider whether the plaintiff had established that they were actuated by purposes or motives that were foreign to the occasion of the privilege and thus prevented the operation of the defence: at [81], referring to the principles identified in Roberts v Bass at [75] (Gaudron, McHugh and Gummow JJ). 197 The evidence upon which the trial judge found malice on the part of the appellant is set out at [38]-[51] above.

Grounds of challenge 198 McColl JA has noted the grounds of appeal with respect to the finding of malice, at [53] above, and has summarised the manner in which those issues were addressed in oral submissions at [176 - [181] above. 199 As her Honour has noted, the appellant faces a significant obstacle in seeking to overcome findings of this kind. A finding that a publication was actuated by a purpose or motive foreign to an occasion of qualified privilege is not merely a finding of an objective circumstance, which may be reviewed in accordance with the principles in Warren v Coombes [1979] HCA 9; 142 CLR 531, discussed in Costa v The Public Trustee of NSW [2008] NSWCA 223 at [41] - [50] (Ipp JA) and [58] - [105]. A finding as to motive or purpose involved a finding as to the state of mind of the appellant at the relevant time and by reference to his own evidence. However, the appellant did not seek to challenge the assessment made by the trial judge of the appellant's testimony, but rather sought to challenge the inference of malice drawn from the facts as found and the absence of any clear finding that malice actuated the defamatory publications. 200 As explained by McColl JA, the material complained of at trial included four articles published in September 2004, November 2004, December 2004 and February 2005. The first two articles raised issues concerning the respondent's conduct in relation to insurance. They were found not to be defamatory. Nevertheless, the material upon which they were based was the subject of extensive cross-examination of the appellant, to which the trial judge gave attention in considering whether the later defamatory publications were actuated by malice: at [89] - [98]. The summary of the evidence in relation to that material was to be found at [94], set out by McColl JA at [44] above. The thrust of the complaint made by the appellant by reference to that paragraph, and subsequent paragraphs also summarised by her Honour, was twofold: first, it submitted that matters such as failure to inquire as to the truth or otherwise of the allegations reported did not demonstrate malice and, secondly, that a finding that the appellant disliked, or even despised, the respondent did not demonstrate that the publications were actuated by malice or that malice was the dominant motive for the defamatory publications. 201 With respect to the first complaint, it is no doubt correct to say that a distinction should be drawn between circumstances where the publisher is careless or indifferent as to the truth or falsity of the allegations being made and the situation where the publisher's attitude amounts to recklessness, in the sense of wilful blindness, as to the truth or falsity of the allegations: see Roberts v Bass at [76]. Nevertheless, to draw such a distinction is not to consign factual findings of indifference or failure to inquire to the category of irrelevance. The fact that something is "untrue, irrational or intemperately expressed may warrant the conclusion, or contribute to the conclusion, that the protection of the privilege should not be afforded": see Skalkos v Assaf [2002] NSWCA 14; (2002) Aust Torts Rep ¶81 - 644 at [130] (Giles JA). 202 At its strongest, the appellant's complaint was that, as appeared from passages of his evidence set out by the trial judge at [92] and [93], the appellant's dislike of the respondent was based upon his belief as to the respondent's conduct, publication of which fell within the scope of the occasion attracting qualified privilege. Thus it might be argued that the more iniquitous the conduct, the greater dislike it was apt to engender and the greater the importance of publishing information as to the conduct to others with an interest in the matter. In other words, on the approach adopted by the trial judge, it was arguable that the privilege was most likely to be lost in the very case where its protection was most properly invoked. 203 The dilemma is, however, more apparent than real. The occasion warranting the protection of the privilege is the duty or interest in revealing particular conduct: it is not the fact that the publisher has a belief that the conduct occurred. The belief of the publisher may be a precondition to the publication, but the belief itself, which may be false, does not justify the publication. Rather, the publication of untrue defamatory material may be protected if the publication was motivated by an honest belief in the relevant duty or interest to publish: see Moit v Bristow [2005] NSWCA 322 at [75] (McColl JA). 204 For similar reasons, the appellant's complaint in relation to the findings with respect to motive is misconceived. In considering those submissions, I would accept that the appellant had mixed motives: few activities in areas of contest are free from some admixture or confusion of motives. Nevertheless, the failure on the part of the trial judge to refer to a "dominant motive or purpose" does not indicate that he took into account some contributing factor of a lesser status. Thus, the joint judgment in Roberts v Bass noted that "for the purpose of that privilege, express malice (malice) is any improper motive or purpose that induces the defendant to use the occasion of qualified privilege to defame the plaintiff": at [75]. To similar effect, their Honours stated at [78]: "In the law of qualified privilege, the common law has always regarded malice as the publishing of defamatory material with an improper motive." 205 Gleeson CJ, perhaps more precisely, stated at [10]: "For example, if the privileged occasion is the making by A of a report to B about the character or conduct of C, in pursuance of a duty or interest, then if the dominant motive for the making of a defamatory statement in the report is a desire to injure C, that defeats the privilege. The occasion has been misused. In that context, an honest expression of opinion about C's character or conduct is the obverse of a statement made with the dominant motive of injuring C." 206 There is no reason to suppose that statements in the joint judgment as to motive or purpose, made without reference to the qualifier "dominant", were intended to indicate any departure from established principle. There being no complaint that the trial judge misdirected himself as to the law, no doubt because he set out the legal principles correctly, no different conclusion should follow in respect of his Honour's reasoning. Accordingly, his Honour's finding that the appellant was actuated by an improper motive, by late 2004, did not demonstrate error: see [94], [98] and [107].

Conclusion 207 For these reasons, I agree that the appeal should be dismissed with costs.

06/02/2009 - Incorrect CLR - Paragraph(s) Cover sheet, pars 105, 184

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