In Lange's case, the High Court held that in proceedings for defamation, the categories for qualified privilege in defence of a claim include a communication made to the public on a government or political matter, including discussion of government or politics at a state or territory or a local government level. The Court also held that a publisher relying or seeking to rely on such a defence of qualified privilege must establish that his conduct in making the publication was reasonable in all the circumstances."
26 His Honour concluded with the following observations:
"As it is agreed that the leaflet raises matters of a political nature I consider that it is incumbent on this court to consider the reasonableness of the defendant's conduct in respect of each of the imputations found to have been conveyed."
27 Thereafter, his Honour went on to refer to each of the imputations in turn. He did so in a context where he had stated that an assessment of "reasonableness" had to be made with respect to "each of the imputations". He did this because of what he described as an "agreement" that the "leaflet raises matters of a political nature".
28 This is no doubt a reference to the earlier passage in his Honour's judgment where he said: "The defendant agrees that the material in the leaflet exhibit A raises for [discussion] matters of a political nature." Nevertheless, that sentence was immediately followed by an acknowledgment that the Appellant's case remained that the publication was to a limited class of recipients and accordingly, that qualified privilege at common law applied in the present case.
29 The pleadings in these proceedings do not raise a defence of qualified privilege of the character identified in Lange. They do, however, plead in the alternative qualified privilege both at common law and under s22 of the Defamation Act. References by his Honour to reasonableness, said to be referrable to the Lange privilege, could equally have been applied to a rejection of the defence which was in issue before the Court under s22 of the Defamation Act. The question remains whether or not his Honour applied such a test to the defence of qualified privilege at common law and not merely to the alternative defence under s22 of the Defamation Act.
30 The reason his Honour gave for rejecting the defence of qualified privilege was the failure on the part of the Appellant to verify the accuracy of the information provided to him, which constituted a failure on the part of the Appellant to act reasonably in all the circumstances. Whilst this reference to reasonableness may have been a determinative finding with respect to the defence under s22 - which is not in issue on this appeal - it was not a material finding with respect to the defence of qualified privilege at common law. It appears that his Honour was convinced, in accordance with submissions made to him on the part of the Respondent, that the principles in Lange with respect to reasonable conduct have a direct bearing on the defence of qualified privilege at common law. This is not so.
31 The first submission of the Respondent was that his Honour should be understood to have made a finding of malice by reason of his express finding that imputation (a) was published with malice. I repeat that in the context of imputation (e), his Honour had said:
"I do not consider that the defendant caused the material forming part of this imputation to be published out of ill will which he bore towards the plaintiff or from any motive other than a desire to see the plaintiff lose the by-election."
32 This finding contrasts with his Honour's reasoning in relation to imputation (a) that:
"The recklessness which the defendant showed in publishing the imputation is I consider but a reflection of the ill will which I find the defendant had towards the plaintiff."
33 It is not, in my opinion, possible to conclude that his Honour made a finding of malice with respect to imputation (e). The Respondent's first submission should be rejected.
34 The second submission was that there was an implicit finding of excessive publication. The circumstances in which communications to voters in an election can give rise to the defence depend on the facts (see e.g. Lang v Willis (1934) 52 CLR 637; Templeton v Jones [1984] 1 NZLR 448; Braddock v Bevins [1948] 1 KB 580; Palmer v Belan [1999] NSWSC 187; Gatley on Libel and Slander (9th ed) pars 14.32-14.34).
35 As McHugh J said in Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211 at 263:
"It has long been established, however, that qualified privilege is not lost simply because the communication is read, seen or heard by persons having no legitimate interest in receiving the communication."
36 The extent and nature of the publication is of significance, but it is not the case that incidental publication to persons who are not voters would necessarily deprive the Defendant of the defence. (See e.g. Reynolds v Times Newspaper Ltd [1999] 3 WLR 1010 at 1052-1055; Gatley at pars 14.65-14.68.)
37 His Honour's findings of fact with respect to the nature and extent of the publication are in a narrow compass. He noted that the leaflets were posted to residents and distributed to at least one polling booth. However, there was no consideration of the evidence from the point of view of whether or not there was anything excessive about the way in which the publication was distributed. Counsel for the Respondent submitted that this Court should conclude that such a finding was implicit in his Honour's reasons. I do not believe that such a conclusion is warranted.
38 The Respondent argued that his submissions before the trial judge relied expressly, and at length, on the proposition that the publication was too wide to justify a defence of qualified privilege. He submitted that the trial judge was well aware that that was the Respondent's submission and that, accordingly, when his Honour said it was "incumbent" upon him to consider "reasonableness" that must have constituted, implicitly, a rejection of the defence of qualified privilege.
39 I do not accept that his Honour should be found to have rejected the defence in such a way. If he had done so, then his Honour would have failed to give reasons for such a decision. His Honour did give reasons in the part of the judgment I have quoted. Those reasons were directed to the issue of reasonableness. That reasoning is not determinative of the common law defence. By reason of his erroneous application of a test of reasonableness, his Honour did not need to, and in my opinion did not, determine the Respondent's case that the extent and nature of publication meant that no defence of qualified privilege was available.
40 The Respondent's third submission was that the finding that the imputation was not published reasonably defeated the Appellant's claim of privilege. It submitted that there can be no privilege attaching to unreasonable publication. This would apply the test found in s22 of the Defamation Act and the particular category of privilege recognised in Lange. However, as the reasoning in Lange itself indicates, this test is not applicable to a claim for qualified privilege at common law.
41 The Respondent also submitted that the Lange test of "reasonableness" should now be accepted as "mandatory" in the case of what was described as "widespread or multiple publications to the public", at least in the case of publication on political issues. Nothing in Lange suggests that the High Court was laying down anything in the nature of a mini-code on such matters. The Court was extending the defence of qualified privilege, it was not intending to restrict the common law defence insofar as it was applicable to publication of political matter.
42 On the cross-appeal, counsel for the Respondent submitted that it was not open to his Honour to find that publication with respect to imputation (a) was motivated by ill will, whereas publication of imputation (e) was not. Counsel directed attention to the fact that the two imputations were conveyed by the same physical document.
43 The law of New South Wales provides that the cause of action in defamation is the imputation. (See s9(1) and s9(2) of the Defamation Act.) There is nothing inherently inconsistent in a finding that two quite distinctive imputations, conveyed by different parts of the same publication on different subject matters, are not actuated by the same motive.
44 There is, in fact, a material difference in the content of the two imputations from the perspective of the relationship between the Respondent and the Appellant. In the case of imputation (e), with respect to the deception of the voters about the Respondent's alleged political past, no particular interest of the Appellant was involved. Imputation (a), however, focused on the Respondent's hypocrisy with respect to allegations against greedy developers when he himself had made exorbitant profits from developments. His Honour's express findings of fact indicate that the Appellant had a particular motivation with respect to this subject matter. His Honour found:
"The defendant was a development consultant and seemed irritated and frustrated by the refusal of [Ku-ring-gai] Council to approve certain projects he had submitted on behalf of his clients. On the evidence before me it would appear that the actions of [Ku-ring-gai] Council in relation to some clients of the defendant caused the defendant to become bitter towards the plaintiff."
45 This finding of fact would be an appropriate basis for his Honour to find, if that is what his Honour intended, that with respect to one imputation the Appellant was actuated by malice, but with respect to the other imputation, he was not.
46 I would grant leave to cross appeal but dismiss the cross appeal.
47 The appeal should be allowed. The matter should be remitted to the District Court to redetermine the defence of qualified privilege to imputation (e) and, if the defence is made good, to redetermine damages.
48 The Appellant contended that any remitter should be based on all findings of fact already made, particularly the asserted finding of absence of malice. It would be artificial to remit the defence of qualified privilege in part only. The trial judge did not deal with the Respondent's contention to the effect that privilege was lost by reason of the scope of the publication. He does appear to have dealt with malice. His conclusion on the inappropriate test of reasonable publication, may have precluded a more careful analysis of malice. All aspects of the qualified privilege defence to imputation (e) should be remitted. Neither party wishes a further trial to occur. What, if any, further hearing is appropriate should be determined in the District Court.
49 The Appellant did not submit, nor seek any order, which would enable it to reassert a case for protection under s22 of the Defamation Act.
50 The Appellant asked the Court to vacate the order for costs. As the Respondent is entitled to a verdict for imputation (a), the Respondent is entitled to costs at trial.
51 The orders I propose are: