Gross v Weston & Anor [2007] NSWCA 1 (8 January 2007)

Last Updated: 31 December 2007

NEW SOUTH WALES COURT OF APPEAL

CITATION: Gross v Weston & Anor [2007] NSWCA 1
This decision has been amended. Please see the end of the judgment for a list of the amendments.

FILE NUMBER(S):
40345/2005

HEARING DATE(S): 1 September 2006

JUDGMENT DATE: 8 January 2007

PARTIES:
Ernestine Gross (Plaintiff/Appellant)
Rae Weston & Macquarie University (Defendants/Respondents)

JUDGMENT OF: Handley JA McColl JA Hunt AJA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 1513/02

LOWER COURT JUDICIAL OFFICER: Sorby DCJ

LOWER COURT DATE OF DECISION: 1 April 2005


COUNSEL:
Appellant: T Molomby SC/ RK Rasmussen
Respondent: TD Blackburn SC/ DR Sibtain

SOLICITORS:
Appellant: Kalantzis Lawyers (Surry Hills)
Respondent: Sparke Helmore (Sydney)

CATCHWORDS:
Defamation — qualified privilege — Reply alleging improper motive — content of such Reply — particulars to be supplied — relevance of falsity of plaintiff’s evidence in s 7A hearing.

LEGISLATION CITED:
Defamation Act 1974

CASES CITED:
Adam v Ward [1917] AC 309
Ainsworth v Burden [2005] NSWCA 174
Bailey v FCT [1977] HCA 11; (1977) 136 CLR 214
Barrett v Long [1851] EngR 634; (1851) 3 HLC 395 [10 ER 154]
Bass v TCN Channel Nine Pty Ltd [2003] NSWCA 118; (2003) 60 NSWLR 251
Bass v TCN Channel Nine Pty Ltd [No 2] [2006] NSWCA 343
Bellino v Australian Broadcasting Corporation (1995) 185 CLR 183
Calwell v Ipec Australia Ltd [1975] HCA 47; (1975) 135 CLR 321
Commercial Bank of Australia Ltd v Thomson (1964) 81 WN (NSW) 553
Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658
Dobson v Morris (1975) 4 NSWLR 681
Eade v The King [1924] HCA 9; (1924) 34 CLR 154
Edgington v Fitzmaurice (1885) 29 Ch D 459
El-Azzi v Nationwide News Pty Ltd [2004] NSWSC 1057
Emmerton v University of Sydney [1970] 2 NSWR 633
Gross v Weston & Anor, Court of Appeal, 13 December 2005, unreported
Herald and Weekly Times Ltd v McGregor [1928] HCA 36; (1928) 41 CLR 254
Hobbs v CT Tinling & Co Ltd [1929] 2 KB 1
Kelly v Kelly (1950) 50 SR (NSW) 261
Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520
Laughton v Bishop of Sodor and Man (1872) LR 4 PC 495
Leotta v Public Transport Commission of NSW (1976) 9 ALR 437
Lloyd v Powell Duffryn Steam Coal Co Ltd [1914] AC 733
Mowlds v Ferguson (1939) 40 SR (NSW) 311
Mummery v Irvings Pty Ltd [1956] HCA 45; (1956) 96 CLR 99
Nevill v Fine Arts and General Insurance Co Ltd [1895] 2 QB 156
Nominal Defendant v Haslbauer [1967] HCA 14; (1967) 117 CLR 448
Philliponi v Leithead (1959) 59 SR (NSW) 353
Re Grove; Vaucher v Treasury Solicitor (1888) 40 Ch D 216
Regina v Beserick (1993) 30 NSWLR 510
Regina v Difford & Stokes (1990) 51 A Crim R 25
Rex v Associated Northern Collieries [1910] HCA 61; (1910) 11 CLR 738
Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1
Scott Fell v Lloyd [1911] HCA 34; (1911) 13 CLR 230
Simpson v Robinson [1848] EngR 588; (1848) 12 QB 511 [116 ER 959]
Spill v Maule (1872) LR 4 PC 495
Steinberg v FCT (1975) 134 CLR 640
Thomas v The Queen [1960] HCA 2; (1960) 102 CLR 584
Tripodi v The Queen [1961] HCA 22; (1961) 104 CLR 1
Turner v Dalgety & Co Ltd (1952) 69 WN (NSW) 228
Vlasic v Federal Capital Press of Australia Pty Ltd (1976) 9 ACTR 1
Walton v The Queen [1989] HCA 9; (1989) 166 CLR 283

DECISION:
1. The appeal is dismissed
2. Each party is to pay her and its own costs.


JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40345/2005

HANDLEY JA

McCOLL JA

HUNT AJA

Monday 8 January 2007

GROSS v WESTON & ANOR

Headnote

The plaintiff and the first defendant were employees of the Macquarie University (the second defendant) as members of its academic staff. The first defendant wrote an internal memorandum to the plaintiff criticising her work and changing her duties. The internal memorandum contained a “cc” notation identifying six other members of the staff. The first defendant admitted publishing the matter complained of to one of those six persons, the Head of School, but she denied publication to the other persons identified in the “cc” notation.

A jury in a hearing pursuant to s 7A of the Defamation Act 1974 found that, contrary to the evidence the first defendant gave, she had published the memorandum to the other five persons identified in that notation.

The first defendant pleaded defences of, inter alia, qualified privilege. The plaintiff replied that the publication was actuated by express malice. Following the receipt of the first defendant’s answers to interrogatories, the plaintiff sought leave to file an Amended Reply. The defendant objected to leave being granted on a number of grounds. The judge in the District Court refused leave, and the plaintiff appealed.

Held
1. In the light of the joint judgment in Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1, a preferable reply to a defence of qualified privilege (both at common law and as extended by statute) would be:

The publication of the matter complained of was actuated by an improper motive.

2. Both the parties and the judge adopted an erroneous approach of examining each of the particulars of improper motive given by the plaintiff to see whether that particular by itself established a knowledge or belief by the first defendant that the matter complained of was false.

3. Provided that there is disclosed in the particulars as a whole a reasonably arguable basis for a finding that the publication of the matter complained of was actuated by an improper motive, the task of a judge dealing with a defendant’s complaint about the particulars of that issue before the trial is limited to determining (1) whether any of the particulars has no relevance to the issue, and if so whether to strike it out, and (2) whether the particulars are sufficient as a whole to forewarn the defendant of the nature of the case he or she has to meet on that issue and, if not, whether to order further particulars or to strike out the allegation of improper motive. It is for the trial judge at the end of the evidence to determine whether there is evidence to support the Reply.

4. Where the plaintiff alleges that the defendant acted with a particular state of mind, the defendant is entitled to particulars of the facts and matters on which the plaintiff relies to establish that state of mind.

The obligation to give particulars discussed.

5. The joint judgment in Roberts v Bass is authority for the following six propositions:

(1) Except where the defendant was under a legal duty to publish the matter complained of, the defendant’s knowledge that it was false is ordinarily conclusive evidence that the publication was actuated by an improper motive.

(2) Recklessness in the publication of the matter complained of does not establish knowledge of its falsity unless it amounts to wilful blindness on the part of the defendant which the law equates with knowledge.

(3) Recklessness — when present with other evidence — may nevertheless be relevant to whether the defendant had an improper motive which actuated the publication.

(4) If a plaintiff’s case rises no higher than evidence that the defendant did not have a positive belief in the truth of what he published, there is no evidence that its publication was actuated by an improper motive.

(5) The absence of a positive belief in the truth of what was published may nevertheless be relevant — with other evidence — to whether the defendant’s improper motive actuated the publication, but it will not establish that fact by itself.

(6) Where the plaintiff relies on the defendant’s knowledge of the falsity of the matter complained of to establish an improper motive, it is unnecessary to identify that improper motive, as there can be no proper motive in those circumstances unless the defendant has a duty to publish the matter complained of.

Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1 discussed.

Whether the exception to proposition (1) should also include the occasion of qualified privilege where a defendant has either a social or moral duty to disclose to a person in authority over the plaintiff the existence of an allegation concerning the plaintiff where the person in authority has a relevant interest in knowing of its existence, queried by Hunt AJA.

6. Similarly, it is unnecessary for the plaintiff to identify the improper motive where the plaintiff relies on wilful blindness on the part of the defendant, in circumstances where the law equates that state of mind with knowledge.

7. In all other situations, the plaintiff is obliged to identify, in the particulars of improper motive, the improper motive on which he or she relies.

8. If the plaintiff asserts and fails to prove knowledge of falsity, but wishes to establish improper motive in an alternative way, that alternative improper motive must have been identified in the particulars together with the facts and matters on which the plaintiff relies to establish that alternative state of mind.

Orders:
1. The appeal is dismissed.
2. Each party is to pay her and its own costs.

T Molomby SC & RK Rasmussen (instructed by Kalantzis Lawyers, Surry Hills) for the plaintiff/appellant

TD Blackburn SC & DR Sibtain (instructed by Sparke Helmore, Sydney) for the defendants/respondents

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40345/2005

HANDLEY JA

McCOLL JA

HUNT AJA

Monday 8 January 2007

GROSS v WESTON & ANOR

Judgment

1 HANDLEY JA: I agree with Hunt AJA.

2 McCOLL JA: I agree with Hunt AJA.

3 HUNT AJA: The plaintiff (Ernestine Gross) has appealed from the decision of Judge Sorby in the District Court refusing her leave to file an amended Reply in a defamation action brought by her in that Court against Rae Weston and the Macquarie University. Leave to appeal has already been granted by this Court (differently constituted): Gross v Weston & Anor, 13 December 2005, unreported.

4 The plaintiff asserts in her Statement of Claim that both she and the first defendant were employees of the University. The Statement of Claim is silent as to the positions held respectively by the plaintiff and the first defendant within the University, but it is sufficiently clear from the matter complained of that both are members of the academic staff, and that the position held by the first defendant is senior to that held by the plaintiff.

5 The matter complained of is an internal memorandum on the letterhead of the Macquarie Graduate School of Management [MGSM]; it is signed by the first defendant and addressed to the plaintiff. It includes the notation “cc” with a list of six names (including one Bernard Carey) — a notation which normally indicates that copies of the document had been provided to those identified persons. According to evidence which has since been given by the first defendant, Professor Carey is the “Head of School”, and the others identified in the “cc” notation are members of the University staff concerned with the MGSM. The document is dated 15 March 1996, and the plaintiff alleges that it was published on that date. The proceedings were commenced during 2002, but the precise date of the originating process is not before this Court.

6 The tenor of the internal memorandum may be discerned sufficiently from its first paragraph:

Following the discussion between you, Bernard Carey and I [sic] last week, he and I agreed that you did not have the professional competence to deliver the Economic Context of Management core level course at all and that it would threaten the reputation of the MGSM if you were further involved in it. This is merely the latest in a series of events that lead us to be concerned about your role at the MGSM. You have refused, according to the Director, to undertake any of the series of administrative tasks that the rest of us do quite automatically. Your contribution in research has been very minor. Further, you do not appear to accept responsibility for anything you do.

The memorandum goes on to inform the plaintiff that, “after discussion with other members of our group”, she was being offered only four term-long units teaching in the Accounting for Management course for the following year, as there were specific support materials, an established text and detailed guidance for lecturers. The first defendant then stated:

I am satisfied that with this substantial support, you should be able to deliver your preferred four units teaching.

7 Publication to Professor Carey was admitted by the defendants in their Defence but denied in relation to the other persons identified in the “cc” notation. The defendants disputed the date of that publication, and they have pleaded that the limitation period had expired.

8 A separate trial of the issues of publication and of the imputations conveyed by the matter complained of has taken place pursuant to s 7A of the Defamation Act 1974. The first defendant gave evidence that she holds the position of “professor of management”. She accepted that she had delivered the internal memorandum on 15 March 1996 to Professor Carey, but she denied that it had been published to the other persons identified in the “cc” notation. She sought to explain the inclusion of their names in the “cc” notation in various ways and she was the subject of extensive cross-examination. Reference to her evidence is made later in this judgment. The jury found that the internal memorandum had in fact been published to each of the other persons identified in the notation.

9 The jury also found that the matter complained of conveyed the following imputations:

(a) That [the plaintiff] was professionally incompetent.

(b) That she was so professionally incompetent that were she to be allowed to teach the Economic Context of Management Core Level course at the Macquarie Graduate School of Management, the reputation of the School would be threatened

(c) That she refused to undertake any of a series of administrative tasks which most academics would carry out automatically.

(d) That she appears not to accept responsibility for anything she does.

(e) That she was so professionally incompetent that she was able to lecture the Accounting for Management Unit only because it had substantial support material.

The jury rejected a further imputation:

(f) That she was so professionally incompetent that there was a real risk that she would fail, or refuse, to perform in the accounting for management unit,

The plaintiff has now deleted imputation (c) in her “Third Further Amended Statement of Claim”, filed following the s 7A hearing.

10 The defendants’ Defence to the plaintiff’s Third Further Amended Statement of Claim acknowledges the jury’s findings against them. It appears to fill in at least one of the gaps left in the plaintiff’s Statement of Claim; it states that the first defendant was the “Discipline Convenor” in respect of the Accounting, Economics and Finance departments of the MGSM. It is unclear from the plaintiff’s proposed Amended Reply, which the judge refused leave to the plaintiff to file (and which is the subject of the present appeal), whether the plaintiff takes issue with the defendants’ description of the first defendant’s position, but the plaintiff describes the position held by Professor Carey as “the Director” of the MGSM. There is a reference to the otherwise unidentified Director in the matter complained of.

11 The defendants have pleaded defences of common law qualified privilege, qualified privilege as extended by statute (Defamation Act, s 22) and unlikelihood of harm (s 13). In relation to the common law defence, the defendants assert that the first defendant had a duty to publish the matter complained of to the Head of School of the MGSM (that is, to Professor Carey) and to other teaching professionals and administrators, and that each of those persons had a reciprocal interest in receiving such a communication dealing with a change in the allocation of teaching responsibilities and the division of administrative responsibilities within the MGSM. The statutory extension of the common law defence of qualified privilege is pleaded by reference only to s 22, without asserting the matters which that section requires to be proved, but the defendants must be taken as accepting the burden of proving that:

(a) either the recipients of the memorandum had an interest in having information on the subject with which it is concerned, or the defendants believed on reasonable grounds that they had such an interest;
(b) the matter was published to those recipients in the course of giving to them information on that subject; and
(c) their conduct in publishing that matter was reasonable in the circumstances.

12 Both the original Reply and the proposed Amended Reply join issue with the defences pleaded, and thus with the allegation that the first defendant had a duty to publish the matter complained of. (The plaintiff sought leave to file the Amended Reply after receiving the first defendant’s answers to interrogatories.) Both the original Reply and the proposed Amended Reply plead that the publication of the matter complained of “was actuated by express malice” on the part of the first defendant. It has not been pleaded that the University possessed a similar state of mind. No doubt the University’s admission in the Defence of liability for the actions of the first defendant is an admission of vicarious responsibility for not only the publication but also for the first defendant’s state of mind in making the publication, but this is a matter to which the parties should apply their minds at some time before trial. Although this allegation of express malice is made without restriction, it can apply only to the two qualified privilege defences. It is no answer to the s 13 defence.

13 Malice is historically the answer to a defence of qualified privilege. The use of the term “express malice” in the plaintiff’s Reply is in conformity with the terminology of DCR Pt 49 r 18 as it applied at the time of the original Reply. That rule provided that, where the plaintiff intends to meet any defence by alleging that the defendant was actuated by express malice in the publication of the matter complained of, the plaintiff is to file and serve a notice of that allegation, and include in that notice:

particulars of the facts and matters on which he relies to establish any such allegation [...].

14 However, with the benefit of a very elaborate examination of the basis on which a defence of qualified privilege may be defeated — to be found in the joint judgment of Gaudron, McHugh & Gummow JJ in the decision of the High Court in Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1 commencing at [75], which I discuss more fully later in this judgment — it is appropriate, in my view, that some further consideration be given as to whether “actuated by express malice” is a sufficient pleading, as the three justices have now examined and defined both the concept by which a plaintiff may defeat a common law defence of qualified privilege and the correct terminology to be adopted by the plaintiff in pleading that concept. Unfortunately, theirs were the only voices on these issues in that case; Kirby J expressed his “general agreement” with the joint judgment insofar as it dealt with the defendant’s honest belief in the published material, recklessness in publishing without consideration for the truth or falsity of the material and knowledge of the falsity of the published material in the context of malice at common law, but only insofar as those issues arose in circumstances attracting the protection of the constitutional freedom of political communication (see Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520). Kirby J reserved his position on the common law outside such situations. The Chief Justice and the other two justices who participated in Roberts v Bass dealt principally with the constitutional defence, with only passing reference to what a plaintiff must establish to defeat a common law defence of qualified privilege. What is said in the joint judgment is therefore strictly obiter, but the depth of the examination undertaken makes it a valuable resource concerning these issues. It has been accepted as authoritative on these issues by this Court in Bass v TCN Channel Nine Pty Ltd [2003] NSWCA 118; (2003) 60 NSWLR 251 at [11], [16], [25], [83]–[84], [157].

15 The relevant section of the joint judgment in Roberts v Bass commences (at [75]):

An occasion of qualified privilege must not be used for a purpose or motive foreign to the duty or interest that protects the making of the statement. A purpose or motive that is foreign to the occasion and actuates the making of the statement is called express malice. The term “express malice” is used in contrast to presumed or implied malice that at common law arises on proof of a false and defamatory statement. Proof of express malice destroys qualified privilege. Accordingly, 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. [Emphasis supplied in original]

The judgment distinguishes improper motive from matters which are themselves evidence of malice (such as ill-will, bias and prejudice), and states that these matters do not by themselves constitute proof that the publication was actuated by an improper motive (see, for example, at [76], [83]). These matters are discussed later in this judgment.

16 In these circumstances, in my opinion, a preferable reply to a defence of qualified privilege (both at common law and as extended by statute) would be:

The publication of the matter complained of was actuated by an improper motive.

The parties are at issue as to whether a plaintiff is obliged to identify the specific improper motive on which he or she relies. I will return to that argument later.

The plaintiff’s particulars of improper motive

17 In the present case, the plaintiff (having pleaded that “the first defendant in the publication of the matter complained of was actuated by express malice”) has introduced the concept of improper motive only as a general heading to her particulars:

The first defendant’s dominant purpose in publishing the matter complained of was improper. This can be inferred from the following matters:

So far as the terms of the original Reply can be discerned from the proposed Amended Reply, the plaintiff gave as particulars one specific allegation and some other very general allegations — that the first defendant:

(1) had deliberately or recklessly and without having any basis for doing so:
(a) “associated” the plaintiff with the allegation in imputation (a), and
(b) stated (that is, conveyed) imputation (b);
(2) had known that all of the imputations conveyed by her were false; and
(3) had produced and published all of the imputations because of personal differences between the plaintiff and herself and a desire to damage the plaintiff in the eyes of her colleagues and students.

18 The Amended Reply which the plaintiff unsuccessfully sought to file vastly expands the way in which those concepts are expressed, but it does little to expand the defendants’ knowledge of the case they have to meet:

(a) Within the matter complained of the first defendant either deliberately or recklessly stated or imputed that the plaintiff was professionally incompetent without having any belief in the truth of that statement or imputation and without having any proper basis for doing so.

(b) Within the matter complained of the first defendant either deliberately or recklessly stated or imputed that the plaintiff was so professionally incompetent that were she to be allowed to teach the Economic Context of Management Core Level course at the MGSM the reputation of the school would be threatened without having any belief in the truth of that statement or imputation and without having any proper basis for doing so.

(c) Within the matter complained of the first defendant either deliberately or recklessly stated or imputed that the plaintiff was so professionally incompetent that she was able to lecture the accounting for management unit only because it had substantial support material without having any belief in the truth of that statement or imputation and without having any proper basis for doing so.

(d) Within the matter complained of the first defendant deliberately imputed that the plaintiff appears not to accept responsibility for anything she does without having any proper basis for doing so.

(e) Within the matter complained of the first defendant deliberately and falsely stated that Associate Professor Bernard Carey (the Director of the MGSM and an employee of Macquarie University at that time) agreed that the plaintiff:

(i) was professionally incompetent; and

(ii) was so professionally incompetent that were she to be allowed to teach the Economic Context of Management Core Level course at the MGSM the reputation of the School would be threatened.

(f) Within the matter complained of the first defendant deliberately and falsely stated that Associate Professor Bernard Carey (the Director of the MGSM and an employee of Macquarie University at that time) agreed with her that the plaintiff:

(i) was professionally incompetent; and

(ii) was so professionally incompetent that were she to be allowed to teach the Economic Context of Management Core Level course at the MGSM the reputation of the School would be threatened.

(g) Within the matter complained of the first defendant either deliberately or recklessly associated the plaintiff with matters of professional incompetence when her intention was to convey to readers of the matter complained of only that the plaintiff:

(i) refused to undertake any of a series of administrative tasks which most academics would carry out automatically; and

(ii) appears not to accept responsibility for anything she does.

(h) The first defendant knew at the time that the matter complained of was published by her that the matters which arise from it as imputations pleaded by the plaintiff were false.

(i) The first defendant produced and published the matter complained of because of personal differences between them and a desire to damage the reputation of the plaintiff in the eyes of the plaintiff's colleagues and students.

(j) On 19 August 2004, whilst giving evidence on oath in the District Court of New South Wales, the first defendant knowingly gave a false explanation for the appearance, on the matter complained of, of the names Elizabeth More, James Guthrie, Helen Lange, Graham Godbee and Terri Revell, which explanation was given in an attempt to hide from the Court the fact that the first defendant had in fact published the matter complained of to those persons on or about 15 March 1996 and at a time when the first defendant well knew that those persons had no legitimate interest in receiving all of information contained in the matter complained of

(k) On 19 August 2004, whilst giving evidence on oath in the District Court of New South Wales, the first defendant knowingly gave a false denial that she had published the matter complained of to Elizabeth More, James Guthrie, Helen Lange, Graham Godbee and Terri Revell.

19 The new particulars, when stripped of their unnecessary repetition and their prolixity, boil down to the assertion that the unidentified improper motive is to be inferred from the circumstances that the first defendant:

(1) knew at the time the memorandum was published that the imputations it conveyed were false;
(2) had published the memorandum because of personal differences between the plaintiff and herself;
(3) had deliberately or recklessly stated or imputed imputations (a), (b), (d) and (e), having no belief in the truth of her allegations and without having any proper basis for stating them;
(4) had deliberately or recklessly “associated” the plaintiff with imputation (a) when her intention had been to convey only imputations (c) and (d);
(5) had deliberately and falsely stated that Professor Carey had agreed with what is stated in imputations (a) and (b);
(6) had knowingly given a false explanation for the inclusion of the names (other than of Professor Carey) identified in the “cc” notation, in an attempt to hide from “the Court” the fact that she had published the matter complained of to those persons “on or about 15 March 1996” and at a time when she well knew that those persons had no legitimate interest in receiving all of the information contained therein; and
(7) had knowingly given a false denial that she had published the matter complained of to those persons (other than Professor Carey) identified in that notation.

There is a minor alternative to the allegation in par (5), in that the plaintiff has also pleaded that the false statement was that Professor Carey had agreed with the defendant as to what is stated in imputations (a) and (b). These states of mind are stated merely as conclusions, and there is no identification of the facts and matters on which the plaintiff relies as establishing these various states of mind attributed to the first defendant, as specifically required by UCPR 15.4.

20 The defendant objected to leave being granted to file the proposed Amended Reply on the bases that:
(a) no improper motive is identified;
(b) the plaintiff has not provided “proper particulars” in support of the allegation that an identified improper motive actuated the publication;
(c) the allegations in (1) to (5) cannot establish an improper motive in the way described in Roberts v Bass, and in any event they do not identify the case the defendant has to meet; and
(d) the allegations in (6) and (7):

(i) depend on the jury’s verdict in the s 7A trial that the memorandum had been published to those identified in the “cc” notation, and that verdict does not amount to a finding that the evidence she gave was false, and

(ii) relate to matters too long after the publication to be relevant to the first defendant’s state of mind at that time.

The judge’s decision

21 The judge reserved his decision, and subsequently dismissed the plaintiff’s application to file the proposed Amended Reply. He held as follows:

1. In relation to particulars (a), (b) and (c), the plaintiff must provide particulars of the first defendant’s “positive belief that what the defendant said was true”. The context, at p 13 of the judgment, shows that the judge would have intended to order the plaintiff to provide particulars of the first defendant’s positive belief in the falsity of what she said, not the truth. The judge suggested that such particulars would “cure” the problem, as it “would provide an answer for the defendant as to what was the actual impropriety that was to be inferred[,] a matter that should not be left to the trial”.

2. In relation to particular (d), the plaintiff must: (i) remove its ambiguity by couching it “in language that states clearly that the defendant deliberately imputed that the plaintiff appears not to accept responsibility for anything she does, knowing it to be untrue”; and (ii) provide particulars of the facts and circumstances that constituted such knowledge.

3. In relation to particulars (e) and (f), the plaintiff’s explanation for the difference between them — that the matter complained of is ambiguous as to whether Professor Carey had agreed with the first defendant directly, or merely with the statements she had made — was not (as I understand what the judge said on p 15 of his judgment) a matter to be dealt with by way of particulars unless the particulars are set out so that “the defendants could meet them”.

4. In relation to particular (g), the defendants were entitled to have the “evidence” disclosing “a ground for concluding that ill-will, lack of belief in truth or improper motive existed on the privileged occasion and actuated the publication” clearly set out.

5. In relation to particular (h) [the judgment refers to imputation (i), but this is an error], it fails “because the word ‘matter’ is not detailed and too wide, and should be particularised as to what the matter or each matter is”.

6. In relation to particular (i) [the judgment refers to imputation (h), but this is an error], it is too vague without particulars of the “personal difficulties” between the parties, and the specification of the desire to injure the plaintiff must be accompanied by a statement that these matters actuated the publication and particulars of the matters from which the Court is to infer such a motive.

7. In relation to particular (j), it is irrelevant because the evidence was given eight years after the publication of the matter complained of, the jury’s verdict that the first defendant had published the memorandum to those identified in the “cc” notation cannot establish that inference because it is unknown what was in the mind of the jury, and there are no particulars of the falsity alleged or of the first defendant’s motive.

8. In relation to particular (k), it is impermissible because of the lapse of eight years.

22 The plaintiff has appealed against that decision. Before dealing with the specific grounds of appeal (from which the parties strayed considerably during the hearing of the appeal), it is necessary to give some consideration to the way in which the plaintiff’s particulars of improper motive have been expressed, as it is their complicated framework which provided much of the difficulty which arose at the hearing in determining what was intended by them. It is also necessary to dispel some of the misconceptions under which the parties appear to suffering, singularly or collectively, in relation to the content of a reply to a defence of qualified privilege alleging that the publication was actuated by an improper motive, and in relation to the approach to be taken to particulars of improper motive in a plaintiff’s Reply.

Problems with the way the plaintiff’s particulars are expressed

23 Particulars (a), (b) and (c) assert that the first defendant “either deliberately or recklessly stated or imputed” various imputations. Particular (g) varies this formulation slightly by asserting that the first defendant “either deliberately or recklessly associated the plaintiff with” various imputations. Particular (d) alleges that the first defendant “deliberately imputed” one imputation. Particulars (e) and (f) allege that the first defendant “deliberately and falsely stated” another imputation. It is unclear what was intended by these inelegant variations.

24 My interpretation of the pleading is that the plaintiff is attempting in part to assert that the first defendant intended to convey the particular imputations identified, so that her alleged absence of belief in the truth of those imputations is said to be relevant (if not alone, then with other matters) as establishing some unidentified improper motive.

25 However, the alternative formulation of “recklessly” imputing the various imputations identified in the particulars appears to me to be inconsistent with the interpretation I have suggested, as the first defendant cannot be found to have intended to convey a particular imputation merely by publishing it as a result of recklessness on her part. It is not asserted that the first defendant’s recklessness was so gross as to constitute wilful blindness, which the law will treat as equivalent to knowledge: Roberts v Bass (at [84]).

26 It is presently not clear to me — and it does not appear to have been made clear at any stage of these proceedings — how this allegation of recklessness assists the plaintiff to establish that the first defendant’s state of mind amounted to an improper motive which actuated the publication of the matter complained of. A defendant who unintentionally imputes a serious imputation against the plaintiff is responsible for the publication of that serious imputation, even though the defendant may have intended to impute something far less serious. If that is all that the plaintiff establishes, no case is made out to support an allegation of any improper motive. Where the defendant recklessly imputes a serious imputation which was unintended, the defendant is similarly responsible for the publication of that serious imputation, but no authority has been cited which suggests that the mere description of the defendant’s conduct as reckless is relevant to (or in itself sufficient to establish) a claim that the publication was actuated by an improper motive on the part of the defendant (see par [43] infra).

27 Each of the first seven particulars commences with the phrase “Within the matter complained of”. The reason for the adoption of these words is also unclear. Its inclusion — together with the absence of any specified factual basis for any of the allegations made (except to a very limited extent in particulars (j) and (k)) — conveys the unfortunate impression that the plaintiff’s pleader has done everything possible to avoid disclosing the real nature of the plaintiff’s case to the defendants. The adoption of this formula may have been intended to demonstrate a reliance by the plaintiff solely on the words of the matter complained of, and not on any other fact or matter, to establish the specific state of mind required for an improper purpose. There has been no argument in relation to the purpose of this phrase, but no authority has been cited to suggest that, except in limited circumstances, the mere strength of the criticism of a plaintiff expressed by a defendant on an occasion of qualified privilege is relevant to a claim that the publication was actuated by an improper motive on the part of the defendant. In Laughton v Bishop of Sodor and Man (1872) LR 4 PC 495, the Privy Council said (at 508):

To submit the language of privileged communications to a strict scrutiny, and to hold all excess beyond the absolute exigency of the occasion to be evidence of malice, would in effect greatly limit, if not altogether defeat, the protection which the law throws over privileged communications.

That statement (based on what was said by the Court of Exchequer Chamber in Spill v Maule LR 4 Ex 232 at 237), has frequently been cited with approval: Nevill v Fine Arts and General Insurance Co Ltd [1895] 2 QB 156 at 172; Adam v Ward [1917] AC 309 at 337; Calwell v Ipec Australia Ltd [1975] HCA 47; (1975) 135 CLR 321 at 332-333; Bellino v Australian Broadcasting Corporation (1995) 185 CLR 183 at 191-192.

28 Each of the first four particulars concludes with the allegation that the imputation had been stated or imputed “without having any belief in the truth of that statement or imputation and without having any proper basis” for stating or so conveying that statement or imputation. This allegation has provoked the defendants to submit that each of these particulars is insufficient in law to establish an improper motive which actuated the publication of the matter complained of, and that they should therefore all be struck out. Judge Sorby accepted the defendants’ submission. The submission, however, was erroneous and the judge erred by accepting it.

Error in approach to particulars supplied

29 Both the parties and the judge adopted a erroneous approach of examining each of the particulars of improper motive given by the plaintiff to see whether that particular by itself establishes a knowledge of or belief in the falsity of the matter complained of on the part of the first defendant. The plaintiff is entitled to lead evidence at the trial within the particulars supplied, and it is for the trial judge at the end of the evidence to determine on the whole of that evidence whether there is a case to support the Reply. The decision of Levine J in El-Azzi v Nationwide News Pty Ltd [2004] NSWSC 1057, to which both parties referred, was given at the trial in determining whether there was a case to go to the jury on the issues raised by the Reply; it was not a decision as to the sufficiency of the particulars in advance of the trial. That decision lends no support to the defendants’ submissions objecting to the sufficiency of each individual particular of the Reply.

30 Provided that there is disclosed in the particulars as a whole a reasonably arguable basis for a finding that the publication of the matter complained of was actuated by an improper motive, the task of a judge dealing with a defendant’s complaint about the particulars of that issue before the trial is limited to determining (1) whether any of the particulars has no relevance to the issue, and if so whether to strike it out, and (2) whether the particulars are sufficient as a whole to forewarn the defendant of the nature of the case he or she has to meet on that issue and, if not, whether to order further particulars or to strike out the allegation of improper motive.

Obligation to give particulars

31 The sufficiency of the plaintiff’s particulars was the subject of argument in this Court. A party’s obligation to give particulars was recently discussed by this Court in Bass v TCN Channel Nine Pty Ltd [No 2] [2006] NSWCA 343 at [42]–[44]:

[42] Particulars fulfil an important function in the conduct of litigation. As Gibbs J pointed out in Bailey v FCT [1977] HCA 11; (1977) 136 CLR 214 at 219:

They define the issues to be tried and enable the parties to know what evidence it will be necessary to have available and to avoid taking up time with questions that are not in dispute. On the one hand they prevent the injustice that may occur when a party is taken by surprise; on the other hand they save expense by keeping the conduct of the case within due bounds.

See also Commercial Bank of Australia Ltd v Thomson (1964) 81 WN (NSW) 553 at 557-558 (FC). The purpose of particulars is to concentrate and define the issues of fact and to prevent surprise and consequent delay: Bailey v FCT at 221 (Jacobs J). The degree of disclosure of the case of the party required to give particulars was described by Isaacs J in Rex v Associated Northern Collieries [1910] HCA 61; (1910) 11 CLR 738 in the oft quoted passage at 740-741:

I take the fundamental principle to be that the opposite party shall always be fairly apprised of the nature of the case he is called upon to meet, shall be placed in possession of its broad outlines and the constitutive facts which are said to raise his legal liability. He is to receive sufficient information to ensure a fair trial and to guard against what the law terms “surprise”, but he is not entitled to be told the mode by which the case is to be proved against him.

[43] The obligation to give particulars does not, of course, require a party to disclose the evidence by which he proposes to prove his case. The particulars must nevertheless make the plaintiff’s case plain so that each side may know what are the issues of fact to be investigated at the hearing: Kelly v Kelly (1950) 50 SR (NSW) 261 at 265 (Full Court). It is no answer to say that all the relevant facts are within the knowledge of party seeking particulars, for that party is entitled to have identified the specific case the plaintiff proposes to make against him: Bailey v FCT at 220, 221 (Mason J); see also Turner v Dalgety & Co Ltd (1952) 69 WN (NSW) 228 at 229 (AR Taylor J); Philliponi v Leithead (1959) 59 SR (NSW) 353 at 358-359 (Full Court); Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658 at 664. This is the preferred approach to be taken: Emmerton v University of Sydney [1970] 2 NSWR 633 at 635 (CA).

[44] The particulars may, of course, be departed from if the interests of justice require such a course: Mummery v Irvings Pty Ltd [1956] HCA 45; (1956) 96 CLR 99 at 110. Where a party seeks to lead evidence in support of his pleaded case which is outside the particulars which have been supplied of that case, it is for the trial judge to consider whether such evidence unfairly amounts to a case of which the other party has had insufficient warning: Vlasic v Federal Capital Press of Australia Pty Ltd (1976) 9 ACTR 1 (Blackburn J) at 6. It is within the discretion of the trial judge whether to permit the evidence (subject in some cases to an amendment of the particulars, but in any event on terms such as to meet any prejudice to the other party) or to hold the party whose particulars were deficient to the issues of fact to be investigated as limited by those particulars: Mummery v Irvings Pty Ltd at 110; Leotta v Public Transport Commission of NSW (1976) 9 ALR 437 at 446 (High Court); Ainsworth v Burden [[2005] NSWCA 174] (CA) at [52].

32 The particulars supplied by the plaintiff’s Reply in the present case almost entirely fail to apprise the defendants of the nature of the case they have to meet on the issue of improper motive. Except for particulars (i), (j) and (k) (which are not without their own problems), the plaintiff’s particulars merely assert various states of mind on the part of the first defendant as conclusions. The defendants, however, are entitled to know the detailed factual basis on which the plaintiff relies to establish those states of mind (but not the means by which that factual basis is to be proved). Only in that way will the defendants then know “the issues of fact to be investigated at the hearing”. Proof of a state of mind was discussed in Regina v Beserick (1993) 30 NSWLR 510 at 521:

The state of a person's mind — whether the nature of that state of mind be knowledge, intention, malice, guilty passion or whatever — is as much a fact as is that person's state of digestion: Edgington v Fitzmaurice (1885) 29 Ch D 459 at 483. It is a fact which may be established by evidence of the words or acts of that person which point to or identify that particular state of mind: Lloyd v Powell Duffryn Steam Coal Co Ltd [1914] AC 733 at 751-752; Thomas v The Queen [1960] HCA 2; (1960) 102 CLR 584 at 596; Dobson v Morris (1975) 4 NSWLR 681 at 681-682, 683; Walton v The Queen [1989] HCA 9; (1989) 166 CLR 283 at 288-289, 300-301; Regina v Difford & Stokes (1990) 51 A Crim R 25 at 30. See also Re Grove; Vaucher v Treasury Solicitor (1888) 40 Ch D 216 at 243. Insofar as the evidence consists of statements made by that person, it is admissible even though self-serving and, whether it consists of that person's statements or acts, it is admissible whether or not the statements and acts are substantially contemporaneous with the time of the offence charged: Dobson v Morris (at 683). It is but a very familiar principle of the law of evidence that subsequent behaviour may be regarded in order to indicate a state of mind which existed at an earlier time: Herald and Weekly Times Ltd v McGregor [1928] HCA 36; (1928) 41 CLR 254 at 265. Remoteness of the acts in time goes to the weight, not to the admissibility, of the evidence: Barrett v Long [1851] EngR 634; (1851) 3 HLC 395 at 414 [10 ER 154 at 162]; and it matters not whether they precede the time of the offence charged: ibid; or succeed it: Simpson v Robinson [1848] EngR 588; (1848) 12 QB 511 at 513 [116 ER 959 at 960].

33 The particulars supplied by the plaintiff make no attempt to identify the “words and acts” of the first defendant from which she will ask the judge at the trial to infer the states of mind alleged on the part of the first defendant. Such facts and matters are not merely evidence to be led at the trial. If they are not identified in the plaintiff’s particulars, the defendants will not be forewarned of the case they have to meet, and they will have to face issues at the trial which may have arisen at any time throughout the whole of the period the plaintiff and the first defendant have known or known of each other. That is not the way in which civil litigation should be conducted. There could be no difficulty for the plaintiff in identifying those facts now, rather than for the first time at the trial.

34 All of the plaintiff’s particulars are defective:

Particulars (a) to (h) are defective without identification of the facts and matters on which the plaintiff relies to establish the states of mind on the part of the first defendant alleged, including:
(i) the first defendant’s intention to convey the particular imputations, and
(ii) her knowledge of their falsity.
If it was intended to assert that the first defendant’s recklessness was so gross as to constitute wilful blindness, the plaintiff’s particulars must also reveal the facts and matters on which the plaintiff relies to establish the first defendant’s wilful blindness (see par [25] supra).

Particular (i) is defective without identification of:
(1) the “personal differences” between the plaintiff and the first defendant, and
(2) the facts and matters from which the judge will be invited to draw the inferences:
(a) that the first defendant desired to damage the plaintiff’s reputation, and
(b) that both those personal differences and/or that desire actuated the publication of the matter complained of.

The plaintiff’s legal representatives would also be well advised when redrafting these particulars to identify to both the defendants and to the judge who ultimately tries the case just how the allegation of recklessness is relevant to her case that the first defendant’s improper motive actuated the publication.

Particulars (j) and (k) are defective without identification of the facts and matters on which the plaintiff relies to establish that the evidence was false to the first defendant’s knowledge. This is an issue to which further reference is made later in this judgment.

A defendant’s relevant state of mind — Roberts v Bass

35 I turn now to consider the joint judgment in Roberts v Bass which has played such a large part in both the District Court and this Court. It states (at [75]) a number of fundamental propositions in relation to what must be established by a plaintiff in order to defeat a defence of qualified privilege. The full text of that paragraph is quoted in par [15] supra. The judgment expresses this concept in two ways: one as “express malice”, in order to contrast it with presumed or implied malice arising from proof of a false and defamatory statement; the other as “any improper motive or purpose that induces the defendant to use the occasion of qualified privilege to defame the plaintiff”. Between these two references in [75], the term “express malice” is designated as “malice” [“express malice (malice)”] — so that subsequent references to “malice” are intended to be a reference to the express malice (or improper motive) which defeats a defence of qualified privilege. (The judgment says, at [78], that “the common law has always regarded malice as the publishing of defamatory material with an improper motive”.) However, most of the subsequent references are in fact to “improper motive”, or to a motive which is “improper”.

36 The joint judgment states (at [75]) that a defence of qualified privilege may be defeated only if the plaintiff establishes that the defendant used the occasion of qualified privilege for a “purpose or motive foreign to the duty or interest that protects the making of the statement” of which the plaintiff complains. The plaintiff must establish not only that the defendant’s improper motive on which he or she relies to defeat the defence of qualified privilege was one foreign to the occasion, but also that that foreign motive actuated the publication of the defamatory statement (also at [75]).

37 The content of the improper motive the plaintiff must establish is stated (at [76] et seq) in a somewhat more complex way which requires careful examination. I have numbered the sentences in the passages quoted from each paragraph in the joint judgment for ease of subsequent reference:

[76] (1) 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. (2) 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 of the publication. (3) 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. (4) 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. (5) 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.

[Emphasis supplied in original]

The joint judgment then proceeds to consider the special case where the defendant is under a legal duty to make the communication, where the truth of the defamation is not a matter that concerns the defendant, and a knowledge or belief that the defamatory statement is false provides no ground for inferring that the publication was actuated by an improper motive. The joint judgment also deals with the converse situation, where malice will be established by proof that the publication was actuated by a motive foreign to the privileged occasion even where the defendant believes that the defamatory statement is true. I put those cases to one side.

[77] (1) If the defendant knew the statement was untrue when he or she made it, it is almost invariably conclusive evidence of malice. (2) That is because a defendant who knowingly publishes false and defamatory material almost certainly has some improper motive for doing so, despite the inability of the plaintiff to identify a motive. [...]

[78] (1) There is no basis in principle or authority for treating knowledge of falsity or lack of honest belief as a separate head of, or equivalent to, malice. (2) In the law of qualified privilege, the common law has always regarded malice as the publishing of defamatory material with an improper motive. (3) Knowledge of falsity is “almost conclusive evidence” that the defendant had some improper motive in publishing the material and that it actuated the publication. (4) That judges have treated knowledge of falsity as almost conclusive evidence of malice is no ground, however, for treating it as a separate head of, or equivalent to, malice. (5) In some circumstances, lack of honest belief in what has been published may also give rise to the inference that the matter was published for a motive or purpose that is foreign to the occasion of qualified privilege. [...]

[79] (1) 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. (2) 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. [...]

[...]

[82] [...] (1) [T]he 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]”.

[83] (1) In our opinion, neither lack of honest belief nor knowledge of falsity ipso facto destroys a defence of qualified privilege. (2) But knowledge of falsity is “almost conclusive evidence” of improper motive, except where the defendant is under a legal duty to publish the defamation.

[84] (1) In exceptional cases, the sheer recklessness of the defendant in making the defamatory statement may justify a finding of malice. (2) In other cases, recklessness in combination with other factors may persuade the court that the publication was actuated by malice. (3) In the law of qualified privilege, as in other areas of the law, the defendant’s recklessness may be so gross as to constitute wilful blindness, which the law will treat as equivalent to knowledge. (4) [...] In less extreme cases, recklessness, when present with other factors, may be cogent evidence that the defendant used the occasion for some improper motive. (5) This is particularly so when the recklessness is associated with unreasoning prejudice on the part of the defendant. [...]

[...]

[87] [...] (1) [M]ere lack of belief in the truth of the communication is not be treated as if it was equivalent to knowledge of the falsity of the communication and therefore as almost conclusive proof of malice. [...] (2) A person who is reckless as to whether the statement is true or false has no positive belief in the truth of the statement. (3) Yet [...] recklessness, short of wilful blindness, is not enough to destroy the privilege. (4) It must be accompanied by some other state of mind. (5) Where that is so, the recklessness is evidence that the publication was actuated by the accompanying state of mind, be it anger, hatred, bias or unreasoning prejudice.

[...]

[89] [...] (1) Where malice is the issue, the case for holding that mere lack of belief is not equivalent to knowledge of falsity or malice is overwhelming. (2) That is because the ultimate issue is always whether the publication was made for a purpose foreign to the duty or interest that protects the occasion of the publication, not whether the defendant believed the matter to be true.

[...]

[96] [...] (1) [H]onesty of purpose is presumed in favour of the defendant. (2) It is for the plaintiff to prove that the defendant did not use the occasion honestly or, more accurately, for a proper purpose. (3) Secondly, in many — perhaps most — cases, a defendant who has no belief in the truth of what he or she publishes will know or believe that it is untrue. [...] (4) Lack of honest belief in the law of qualified privilege does not mean lack of belief; it means a belief that the matter is untrue

[97] (1) Because honesty is presumed, the plaintiff has the onus of negativing it. (2) That is to say, the plaintiff must prove that the defendant acted dishonestly by not using the occasion for its proper purpose. [...]

[98] (1) When the plaintiff proves that the defendant knew the defamatory matter was false or was reckless to the point of wilful blindness, it will constitute almost conclusive proof that the publication was actuated by malice. (2) A deliberate defamatory falsehood “could not have been for a purpose warranted by any privilege; and hence it is unnecessary to determine what the exact purpose was in order to ascertain whether the privilege has been lost for the particular defamatory statement which has been proved to be wilfully false”: Mowlds v Ferguson (1939) 40 SR (NSW) 311 at 329, per Jordan CJ, Davidson and Halse Rogers JJ agreeing. (3) When the plaintiff can only prove that the defendant lacked a belief in the truth of the defamatory material, however, it will be no more than evidence that may give rise with other evidence to an inference that the publication was actuated by malice.

[99] (1) In some cases, proof of lack of belief will not even be evidence from which an inference of malice can be drawn. (2) Thus, the circumstances of the case may be such that the defendant is entitled to communicate defamatory matter even though he or she has no belief in its truth.

38 I interpret these passages as authority for the propositions stated in pars [39]–[48] infra, where a plaintiff seeks to establish that one or other of the following states of mind of the defendant actuated the publication of the matter complained of — (1) a knowledge of or belief in the falsity of the matter complained of, (2) recklessness/wilful blindness, and (3) a lack of belief in the truth.

Knowledge of or belief in falsity

39 Except where the defendant was under a legal duty to publish the matter complained of ([87](2)), the defendant's knowledge or belief that the matter complained of is untrue is ordinarily conclusive evidence that the publication was actuated by an improper motive: [76](3), [77](1), [78](3), [98](1). That is because a defendant who knowingly publishes false and defamatory material almost certainly has some improper motive for doing so, despite the plaintiff’s inability to identify a motive: [77](2). The defendant could not in such a case have had any purpose warranted by any privilege, and it is therefore unnecessary to determine what the exact purpose was: [98](2).

40 Neither lack of honest belief nor knowledge of falsity ipso facto destroys a defence of qualified privilege: [83](1). This statement, insofar as it refers to knowledge of falsity, is explicable on the basis that the plaintiff must also establish that the defendant’s knowledge of falsity actuated the publication. As the existence of such knowledge is ordinarily conclusive evidence that the publication was actuated by an improper motive (see the references in the previous paragraph and [76](2)), the significance of this statement concerning the defendant’s knowledge of falsity appears to rest entirely on the limitation “ipso facto”.

41 The joint judgment does, however, also state —

that “improper motive in making the defamatory publication must not be confused with [...] knowledge of falsity [...] [or] lack of belief in the defamatory statement” (at [76](1)),

that “(t)here is no basis in principle or authority for treating knowledge of falsity or lack of honest belief as a separate head of, or equivalent to, malice [improper motive]” (at [78](1)), and

that this is so notwithstanding that judges have treated knowledge of falsity as almost conclusive evidence of malice (at [78](4)).

If these statements had been limited to a lack of belief on the part of the defendant, their meaning would be clear; what their meaning is insofar as they refer to knowledge of falsity is unclear. However, accepting the exclusion from this general proposition of only the occasion of qualified privilege where the defendant was under a legal duty to publish the matter complained of, the strength of the logic of the statements referred to in par [39] supra is such that I am persuaded that the statements referred to in the previous paragraph were not intended to detract from them. (I discuss later in this judgment (at pars [49]–[51]) an unresolved doubt on my part as to whether that occasion of qualified privilege is the only one which should be excluded from the general proposition stated.)

Recklessness/wilful blindness

42 Recklessness, short of a wilful blindness, is not enough to destroy the defence of qualified privilege: [87](3). In exceptional circumstances, the sheer recklessness of the defendant in making the defamatory statement may justify a finding of malice [improper motive]: [84](1), [98](1). The defendant's conduct may be so gross as to constitute wilful blindness, which the law will treated as equivalent to knowledge: [84](3).

43 In less extreme cases, recklessness — when present with other factors — may be cogent evidence that the defendant used the occasion for some improper motive: [84](2), [84](4). This is particularly so when the recklessness is associated with unreasoning prejudice on the part of the defendant: [84](5).

Lack of belief in truth

44 The defendant’s lack of belief in the truth of what was said must not be confused with improper motive: [76](1). Where malice [improper motive] is the issue, the case for holding that mere lack of belief is not equivalent to knowledge of falsity or malice [improper motive] is overwhelming, because the ultimate issue is always whether the publication is made for a purpose foreign to the duty or interest that protects the occasion of the publication, not whether the defendant believed the matter to be true: [89](1)-(2).

45 The defendant’s lack of belief in the truth of the defamatory material may — with other evidence — give rise to an inference that the publication was actuated by malice [improper motive]: [98](3).

46 The joint judgment does, however, also state that, if proved, the lack of belief usually provides a premise for inferring that the defendant was actuated by an improper motive in making the publication: [76](2); or that it may do so “in some circumstances”: [78](5); that “the evidence or publication must also show some ground for concluding that [...] lack of belief in the truth of the publication, [...] or other motive existed on the privileged occasion and actuated the publication”: [76](5) and that “in many — if not most — cases, a defendant who has no belief in the truth of what he or she publishes will know or believe that it is untrue”: [96](3). On the other hand, the joint judgment also states that “[M]ere proof of the defendant’s [...] lack of belief in truth or improper motive is not sufficient to establish malice”: [76](4). I have added the emphasis to identify the unexpected addition to an otherwise unexceptional statement. It may be that, again, the intention was to demonstrate that the plaintiff must establish that the defendant’s improper motive actuated the publication.

47 However, bearing in mind the strength of the joint judgment’s criticism of those (including myself) who had previously interpreted statements by Lord Diplock in Horrocks v Lowe [1975] AC 135 and statements in other cases as suggesting that an absence of belief in the truth of the matter complained of was sufficient to defeat the defence of qualified privilege — criticism which has wholly convinced me of my own error — I am not prepared to interpret the statements referred to in the previous paragraph as having been intended to detract from the statements in pars [44]–[45] supra.

48 The defendants submitted that Roberts v Bass does not exclude just those cases where the defendant was under a legal duty to publish the matter complained of. They rely on statements by Spigelman CJ in Bass v TCN Channel Nine Pty Ltd at [16]–[30]. In that case, the defendant publisher, pursuant to its social duty to do so, permitted a person attacked by the plaintiff to reply to that attack in the same forum. The Chief Justice held that the defendant's knowledge of the falsity of the matter complained of in such a case did not ordinarily provide evidence that the publication was actuated by an improper motive, and that the joint judgment in Roberts v Bass had not intended to assert that it did. Handley JA expressed the view (at [119]–[123]) that the joint judgment should be interpreted as limiting the exclusion to cases where the defendant had a legal duty to publish, and (at [124]) he adhered to that view after having read the judgment prepared by the Chief Justice. Wood CJ at CL, the third member of the Court, said (at [170]) that he was not persuaded that the case was one that would attract the duty exception — whether it be framed as a legal, moral or social duty. He therefore did not have to decide between the competing views expressed. Although he did not state his agreement with the judgment of Handley JA otherwise, he did agree with the order for a limited new trial on the issue of malice which Handley JA had proposed. The decision of this Court in that case therefore does not provide a clear authority for the propositions stated by either the Chief Justice or Handley JA.

49 I agree with the view expressed by Handley JA in Bass v TCN Channel Nine Pty Ltd that the joint judgment in Roberts v Bass should be interpreted as holding that the defendant’s knowledge or belief that the matter complained of is untrue is ordinarily conclusive truth that the publication was actuated by an improper motive except where the defendant was under a legal duty to publish it. I therefore propose to follow what was said in the joint judgment in Roberts v Bass as Handley JA interpreted it in that case, subject to an unresolved doubt on my part to which I refer in the two succeeding paragraphs but which is irrelevant to the present case.

50 My unresolved doubt relates to the well accepted occasion of qualified privilege where a defendant has either a social or moral duty to disclose to a person in authority over the plaintiff the existence of an allegation concerning the plaintiff where the person in authority has a relevant interest in knowing of its existence. An example would be where a parent has heard school pupils discussing an allegation that a teacher has committed an improper act with a pupil, and he reports that fact to the school principal. The occasion is privileged because the school has an interest in investigating such allegations, and the parent has a social or a moral duty to report the existence of the allegation to the school principal. He does not have a legal duty to do so, as he is not reporting the commission of a crime to the police.

51 If the defendant in such a case complies with that social or moral duty to give that information to the school principal — even though, on the basis of his own assessment of the teacher’s character, he may express his disbelief in the truth of the allegation when conveying the information — I do not understand how such a state of belief on his part can ordinarily be conclusive evidence that his purpose in publishing the matter complained of to the school principal was an improper one. I suggest that this is a matter which requires further examination in the appropriate case. The present case is not such a case, as the first defendant purported to have been acting on the basis of her own knowledge of the plaintiff’s quality as a member of the University’s academic staff. The matter was not debated by the parties. Its resolution therefore does not affect my agreement with Handley JA’s interpretation of Roberts v Bass so far as it applies to the circumstances of the present case.

52 In my opinion, the joint judgment in Roberts v Bass is authority for the following propositions relevant to the present appeal:

(1) Except where the defendant was under a legal duty to publish the matter complained of, the defendant’s knowledge that it was false is ordinarily conclusive evidence that the publication was actuated by an improper motive.

(2) Recklessness in the publication of the matter complained of does not establish knowledge of its falsity unless it amounts to wilful blindness on the part of the defendant which the law equates with knowledge.

(3) Recklessness — when present with other evidence — may nevertheless be relevant to whether the defendant had an improper motive which actuated the publication.

(4) If a plaintiff’s case rises no higher than evidence that the defendant did not have a positive belief in the truth of what he published, there is no evidence that its publication was actuated by an improper motive.

(5) The absence of a positive belief in the truth of what was published may nevertheless be relevant — with other evidence — to whether the defendant’s improper motive actuated the publication, but it will not establish that fact by itself.

(6) Where the plaintiff relies on the defendant’s knowledge of the falsity of the matter complained of to establish an improper motive, it is unnecessary to identify that improper motive, as there can be no proper motive in those circumstances unless the defendant has a duty to publish the matter complained of.

Grounds of appeal

53 The plaintiff has filed two grounds of appeal:

1. The judge erred in law in deciding that an improper motive could not be inferred, but had to be specified.

2. The judge erred in law in deciding that the giving of false evidence in the s 7A trial could not be relevant to her motives at the time of publication.

Specification of improper motive

54 As already stated, it is unnecessary to identify the improper motive where the plaintiff relies on the defendant’s knowledge of falsity, as there can be no proper motive where the defendant had no duty to publish the matter complained of. In my opinion, this is also the position with wilful blindness where the law equates that state of mind with knowledge.

55 In all other situations, however, the plaintiff is in my opinion obliged to identify, in the particulars of improper motive, the improper motive on which he or she relies. It is necessary for the motive to be specified because the defendant may have evidence to meet an allegation concerning the improper motive specified. Such evidence may be of statements made by, or actions of, the defendant on occasions other than that of the publication of the matter complained of. Without such an identification in the particulars of the specific improper motive in issue, the defendant will inevitably be left unready to meet that case at the trial.

56 Moreover, if the plaintiff asserts and fails to prove knowledge of falsity, but wishes to establish improper motive in an alternative way, that alternative improper motive must have been identified in the particulars together with the facts and matters on which the plaintiff relies to establish that alternative state of mind.

57 In the present case, the judge erred in holding that the plaintiff had to identify the improper motive on which she relied where she was asserting that the first defendant knew that the matter complained of was false. He was nevertheless correct to refuse leave to file the proposed Amended Reply because of its many other defects referred to in pars [33]–[34] supra.

False evidence in the s 7A trial

58 The judge erred in excluding the allegation that the evidence given by the first defendant in the s 7A trial was knowingly false, notwithstanding the lapse of eight years between the publication and the evidence. It was made clear in Regina v Beserick, quoted in par [32] supra, that remoteness in time goes to the weight, not the admissibility, of the evidence. This has not been disputed by the defendants on appeal, although they justify the judge’s refusal to grant leave to the plaintiff to file the proposed Amended Reply in relation to particulars (j) and (k) on the basis that proper particulars had not been supplied. I have already held (at par [34] supra) that those particulars are defective.

59 There was, however, another issue raised in both the District Court and in this Court concerning the way in which the plaintiff could prove the falsity of the evidence given by the first defendant. Counsel for the plaintiff said that it was proposed to demonstrate from the evidence itself that it was false and, in addition, to rely on the jury’s verdict that, contrary to the first defendant’s denial, she had published the matter complained of to the five persons other than Professor Carey in the “cc” notation on the internal memorandum.

60 The first defendant in her evidence conceded that anyone who received a document with a “cc” notation would “necessarily understand” that the document had also been sent to the persons identified in the notation, but she denied that this was the reason the notation was there. She said that she had not intended such an implication to be conveyed. She denied that the evidence she had given was untrue.

61 She explained that the identification of Professor Carey in the “cc” notation was not to indicate that he had been given a copy of the memorandum (although she conceded that he had been given a photostat copy). Rather, she said, it was intended “as minutes of our meeting, in that sense”. She did not explain what she had meant by that statement. She did explain the inclusion of the other five names in the “cc” notation as being a way of ensuring that she (the first defendant) “recognised that there were people who would have to know about the changing in the teaching arrangements”, as they were all people either involved in the scheduling and management of the timetable or whose teaching duties would be affected by the changes to be made. She said that she had intended to convey to them the content of the memorandum “only so far as it related to the teaching parts on the second page” (which she identified as referring only to the plaintiff being “moved out of the Economic Context [of the Management core level course]”) and to the consequence that the plaintiff therefore had to be “put into something else”, as this had some “teaching implications”.

62 The first defendant said that she had given the original typed document to the plaintiff, and a photostat to Professor Carey, and that she had kept for herself only the handwritten “original” (that is, the document from which she had typed the memorandum which she had given to the plaintiff). She said that the handwritten document did not record the list of people in the “cc” notation because there was no space for it. She had spoken to three of these persons (those whose own teaching duties were affected) before the memorandum was given to the plaintiff, and to the remainder (those involved in the scheduling and management of the timetable) at a later date. She was asked whether she needed the memorandum to remind her to talk to these people, and she said that, although she had spoken to the three before delivering the memorandum, she “needed to know who was involved” because she needed to know to whom she had talked and to whom she had yet to talk.

63 The first defendant was not asked at the s 7A hearing how she could have been assisted by the “cc” notation on the typed memorandum when she had kept only the handwritten “original” which did not include the list of people identified in the “cc” notation. This may be an important issue in judging whether her explanation for the “cc” notation was false.

64 There were other issues raised at the s 7A hearing.

65 The first defendant was cross-examined on her answer to an interrogatory as to whether she had “conveyed” the matter complained of to those persons, in which she said that she “cannot recall” whether she published the matter complained of to the five people identified in the “cc” notation other than Professor Carey. She agreed that this answer differed from her evidence. She explained the inconsistency by her belief that she was being asked in the interrogatory only whether the information she had given to Professor Carey may have been “carried down the chain” to the other persons named, making her inadvertently responsible. She said:

I believe when I was asked that, I was being asked did I have any knowledge of whether those people knew about the memorandum, regardless of whether I was the one doing the distributing or not, and the answer to that is I didn’t know.

Finally on this issue, she suggested that her answer to the interrogatory should have been that she had “not knowingly” published it to them, and she said:

I didn’t have the intention and I didn’t in fact directly distribute the memo to them at that time, or at any other time that I’m aware of.

There is certainly an argument available from the evidence itself that it was false, but it is for the trial judge to determine that issue.

66 There is also, of course, a very real issue as to whether the publication of the whole of the internal memorandum to the five staff members other than Professor Carey fell within the qualified privilege on which the defendants rely — that is, including the criticism of the plaintiff’s quality as a member of the University’s academic staff, rather than merely the changes made to the plaintiff’s teaching duties. The first defendant said that she had not intended to convey the criticisms of the plaintiff to the five persons identified in the “cc” notation other than Professor Carey (see par [61] supra). This issue will have to be determined by the trial judge on the evidence at the trial, and there was no relevant issue of law raised in the appeal.

67 The defendants maintain their objection that the jury’s verdict does not amount to a finding that the evidence the first defendant gave was false, an issue relevant to malice. It may safely be assumed that the jury did not accept the explanation or explanations she gave, but the defendants contend that this may have been because of the long period which had elapsed between the events in issue and giving evidence. Be that as it may, it is important to distinguish the use the plaintiff seeks to make of the jury’s verdict from the impermissible inference referred to by the parties in their submissions, that the jury had by their verdict accepted the facts the first defendant had denied in her evidence. That is the subject of much authority: Scott Fell v Lloyd [1911] HCA 34; (1911) 13 CLR 230 at 241, 244, 245; Hobbs v CT Tinling & Co Ltd [1929] 2 KB 1 at 21; Nominal Defendant v Haslbauer [1967] HCA 14; (1967) 117 CLR 448 at 460; Steinberg v FCT (1975) 134 CLR 640 at 684, 694. The plaintiff already has a finding in her favour that the first defendant published the matter complained of.

68 In the last of the cases cited in the previous paragraph, Steinberg v FCT, Gibbs J (having followed Scott Fell v Lloyd and Hobbs v Tinling) said:

There may be circumstances in which an inference can be drawn from the fact that the witness has told a false story, for example, that the truth would be harmful to him; and it is no doubt for this reason that false statements by an accused person may sometimes be regarded as corroboration of other evidence given in a criminal case: Eade v The King [1924] HCA 9; (1924) 34 CLR 154 at 158; Tripodi v The Queen [1961] HCA 22; (1961) 104 CLR 1.

That statement does not, however, depend on any inference from a jury’s verdict that the story told was false. I am not persuaded at this stage that the jury’s verdict in the present case assists the plaintiff in the way her counsel has suggested. If the judge accepts that the first defendant knowingly gave a false account of the publication in the s 7A trial — a false account that was detrimental to the plaintiff’s case — then it will be open the judge to draw an appropriate inference that her motive in doing so was to protect herself by harming the plaintiff’s case. Such an inference would flow from the trial judge’s own finding that the plaintiff’s evidence was false, not from the jury’s verdict that she published the matter complained of. It will be for the judge to determine just how specific that motive was. Of course, if the first defendant does give evidence at the trial, she would be estopped by the jury’s verdict in the s 7A hearing from denying that she had published the memorandum to the five persons identified in the “cc” notation other than Professor Carey: Bass v TCN Channel Nine Pty Ltd [No 2] at [24].

69 The evidence the first defendant gave in the s 7A hearing would also be relevant to the issue of malice, as she said that another reason for including the names in the “cc” notation was so that the plaintiff would “particularly know” that she (the first defendant) had already discussed the arrangement with —

[...] all the other people there, so that she was not able, as she had tended to do, to go and find some other way around the situation that she didn’t like.

Beyond that, there appears to be no relevance of the evidence she gave to the issues yet to be determined by the trial judge except in relation to the first defendant’s credit.

Conclusion

70 The plaintiff’s appeal must therefore fail on both grounds. If she wishes still to amend her Reply, she must make a fresh application to the District Court. The defendants, however, are not free from blame for the errors made by the judge, and they have sought on appeal to support most of the erroneous findings made by the judge. They were also a party to the erroneous approach of looking at each of the plaintiff’s particulars in isolation. In my view, each party should pay her and its own costs of the appeal.

Orders

71 I propose that the following orders be made:

1. The appeal is dismissed.

2. Each party is to pay her and its own costs.

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AMENDMENTS:


26/04/2007 - Formatting errors - Paragraph(s) 13, 15

19/12/2007 - Mistranscription - Paragraph(s) 27


LAST UPDATED: 19 December 2007