Fraser v Holmes [2009] NSWCA 36 (5 March 2009)

Last Updated: 9 March 2009

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Fraser v Holmes [2009] NSWCA 36


FILE NUMBER(S):
40201/08

HEARING DATE(S):
5 February 2009

JUDGMENT DATE:
5 March 2009

PARTIES:
Brett Holmes
Andrew Fraser

JUDGMENT OF:
Tobias JA McColl JA Basten JA

LOWER COURT JURISDICTION:
Supreme Court

LOWER COURT FILE NUMBER(S):
SC 20091/07

LOWER COURT JUDICIAL OFFICER:
Simpson J

LOWER COURT DATE OF DECISION:
12 June 2008

LOWER COURT MEDIUM NEUTRAL CITATION:
Brett HOLMES v Andrew FRASER [2008] NSWSC 570

COUNSEL:
A: T D Blackburn SC / S Chrysanthou
R: B R McClintock SC / R K Weaver

SOLICITORS:
A: Ferrier & Associates, Sydney
R: Maurice Blackburn Cashman, Sydney

CATCHWORDS:
DEFAMATION – privilege – qualified privilege – statements made in respect of a duty or interest – on matters of public interest – what constitutes privileged occasion, communication or conduct – whether the occasion of a communication between a candidate and a non-candidate who had expressed contrary political views in the context of an election campaign attracts qualified privilege – whether an ulterior motive of a non-candidate for campaigning against a candidate is relevant to the occasion of qualified privilege – rebuttal of privilege by malice – whether recklessness without evidence of wilful blindness is sufficient to establish that a publication is actuated by malice
fair comment – foundation of fact

LEGISLATION CITED:
Defamation Act 1974
Defamation Act 2005
Suitors’ Fund Act 1951

CATEGORY:
Principal judgment

CASES CITED:
Adam v Ward [1917] AC 309
Aktas v Westpac Banking Corporation Ltd (2009) NSWCA 9
Bashford v Information Australia (Newsletters) Pty Ltd [2001] NSWCA 470
Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; 218 CLR 366
Braddock v Bevins [1948] 1 KB 580
Channel 7 Adelaide Pty Ltd v Manock [2007] HCA 60; (2007) 232 CLR 245
Clarke v Norton [1910] VLR 494
Gross v Weston [2007] NSWCA 1
Horrocks v Lowe [1975] AC 135
John Fairfax Publications Pty Ltd v O’Shane [2005] NSWCA 164
Lindholdt v Hyer [2008] NSWCA 264
Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448
Roberts v Bass [2002] HCA 57; 212 CLR 1
Toogood v Spyring (1834) 1 Cr M and R 181 at 193[1834] EngR 363; ; 149 ER 1044

TEXTS CITED:


DECISION:
(a) Appeal allowed
(b) Set aside the orders made by Simpson J on 12 June 2008
(c) The proceedings be dismissed
(d) The respondent to pay the appellant's costs of the proceedings and of the appeal but to have with respect to the latter a certificate under the Suitors' Fund Act 195, if otherwise qualified



JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40201/08

TOBIAS JA

McCOLL JA

BASTEN JA

Thursday 5 March 2009

ANDREW FRASER v BRETT HOLMES

Judgment

1 TOBIAS JA: By his further Amended Statement of Claim filed on 25 June 2007, the respondent, Mr Brett Holmes, the General Secretary of the New South Wales Nurses Association (the Association), claimed damages in defamation against the appellant, Mr Andrew Fraser, a sitting member of the Parliament of NSW who was seeking re-election at the 24 March 2007 general election. The respondent’s claim arose out of a letter published by the appellant on or about 15 March 2007 (the letter) and sent to 629 residents of his Coffs Harbour electorate who had identified their occupation as that of nursing.

2 The proceedings were governed by the Defamation Act 2005 (the 2005 Act) which, as and from 1 January 2006, replaced the Defamation Act 1974 (the 1974 Act).

The proceedings

3 The appellant raised a number of defences to the respondent’s claim including fair comment at common law, honest opinion pursuant to s 31(1) of the 2005 Act, qualified privilege at common law and statutory qualified privilege under s 30 of the 2005 Act.

4 The proceedings were heard by Simpson J who, on 12 June 2008:

(a) found that the letter in its ordinary and natural meaning, conveyed the imputations pleaded in the Further Amended Statement of Claim and that each was defamatory of the respondent;

(b) rejected the defences of fair comment at common law and honest opinion under s 31(1) of the 2005 Act;

(c) found that the letter was published on an occasion of common law qualified privilege and that the defamatory (and false) facts stated therein were relevant to the occasion;

(d) found that that defence was defeated because the respondent was actuated by express malice; and

(e) assessed the damages to which the respondent was entitled in the sum of $70,000.

5 The appellant filed a summons seeking leave to appeal with respect to her Honour’s finding of malice and with respect to her rejection of the defences of fair comment at common law and honest opinion under s 31(1) of the 2005 Act.

6 By Notice of Contention the respondent sought to uphold the primary judge’s decision on the basis that she had erred in determining that the letter was:

(a) published on an occasion of qualified privilege at common law;

(b) relevant to any occasion of qualified privilege at common law.

7 By a document headed Further Notice of Contention, the respondent sought to affirm the primary judge’s decision on the further grounds that her Honour was correct:

(a) in rejecting the defence of honest opinion under s 31 of the 2005 Act because, on its true construction, s 31(5) did not apply to material published on the same occasion as the expression of opinion but only to material published on a different occasion under qualified privilege; and

(b) in finding that the appellant did not honestly hold the opinion represented by the comment notwithstanding the failure of the respondent to plead by way of reply that the relevant opinion was not honestly held.

8 The summons for leave to appeal and the appeal were heard concurrently. At the conclusion of oral argument, the Court granted the appellant leave to appeal. Accordingly, the reasons that follow deal with the matter on that basis.

The background to the publication of the letter

9 As I have indicated, the respondent was at all material times the General Secretary of the Association. The appellant was at all material times a member of the NSW Parliament representing the Coffs Harbour electorate. He held that seat as a member of the National Party which was, at all material times, in opposition and in a coalition with the Liberal Party.

10 The general election for the NSW Parliament took place on 24 March 2007. As her Honour recorded (at [3]), in the weeks preceding that date a campaign was underway which included debate over a highly contentious political issue concerning the then Federal Government’s industrial relations policies. The governing council of the Association perceived, rightly or wrongly, that the interests of its members stood to be adversely affected if the Coalition was elected to office in NSW as it feared that a State coalition government would refer to the Federal Government and therefore, to its industrial relations regime, coverage of NSW nurses employed in the State’s public health system.

11 Accordingly, the Association struck a levy on its members and embarked upon an extensive and expensive publicity campaign, the purpose and effect of which was to urge support for the re-election of the existing State Labor government.

The matter complained of

12 As I have noted above, the respondent’s claim arose out of the letter directed by the appellant to 629 residents in his Coffs Harbour electorate who identified their occupation as that of nursing. The letter was dated 15 March 2007 – nine days before the election date.

13 According to her Honour (at [6]), it was not disputed that the letter was designed to generate support for the appellant’s re-election to the NSW Parliament by countering the expressed fears of the Association and assuring its recipients that, if elected, a State coalition government would not refer power to the Commonwealth to allow the application of federal legislation to the detriment of members of the nursing profession. Much of the letter was directed to that issue and was not the subject of complaint.

14 However the third paragraph of the letter constituted the matter complained of (paragraph 3). In order to put it into context, I set out the whole of the letter, emphasising that which constitutes the matter complained of:

“ANDREW FRASER MP

State Member for Coffs Harbour

15 March 2007

Dear

Further to my recent letter, I am writing to express my disappointment that nurses are funding a campaign to have Labor re-elected in NSW.

I am disappointed and surprised, because over the last 12 years of a Labor Government, as your State MP, I have fielded hundreds of calls from angry and frustrated nurses about the state of our hospitals and the conditions under which you have to work. I have always done what I can to support nurses and local hospitals so I am disappointed to see nurses now campaigning against me.

As to the real reason why the Association is running this campaign I am led to believe that your General Secretary, Brett Holmes is seeking preselection in the safe Labor seat of Fowler at the next Federal election and that this is his contribution to the Labor Party. I find it appalling that he is using his position and your subs to promote his political career. $1m on this campaign is $1m less the Association has to genuinely help nurses.

I know that nurses are nervous about Work Choices but the High Court has ruled that the Commonwealth has the power to make these changes so all we can do is protect state employees, which is what we have done. As you are State employees, the Federal Government cannot take you over without a State referral and WE WILL NOT BE MAKING THAT REFERRAL.

Thus you may be assured that nurses, teachers, police and others working in professions covered by State Awards, will not be affected by the Federal Industrial Relations Changes.

The NSW Liberal/Nationals have always supported nurses remaining under the state award with all conditions and penalties being GUARANTEED. Peter Debnam and Jillian Skinner have continually reinforced this message but your leadership has been reluctant to provide that information to its membership.

I also ask that when you go to vote that you remember the harm that Labor has done to nursing in the last 12 years. Nurses have been leaving the profession in large numbers because of their working conditions. The public have little confidence in the health system and nurses are unfortunately facing the brunt of that anger with some of that anger being Association wishes to re-elect, savagely cut your access to common Law Workers Comp rights in 2002. Morris Iemma was a senior Minister at the time and voted in favour of those savage cuts. Given all that, I find it astounding that nurses would want to see this Government re-elected.

I hope that you see this campaign by the Nurses Association for what it is and make your own informed decision on Election Day. I make the commitment to you as your local member that we will not be referring IR powers over nurses to the Commonwealth and that we will be protecting your current work conditions. But on top of that we will also improve the health System and improve your working conditions.

If Labor is re-elected the only thing you can be guaranteed, is that nothing will change.

I have had discussions with nurses at the hospital who advised me that, ‘...things at the hospital are much worse tha[n] you even think they are and they are getting worse every day’.

Given that admission, I can’t believe any nurse would want to see Labor re-elected.

For your information I have enclosed a copy of a media release issued by the Shadow Minister for Health, Jillian Skinner, in which she outlines the details of the Coalition’s Police to employ more nurses, so as to ease the workload you are currently burdened with.

I hope you will be able to find the time to read this information so that you can make an informed choice at the NSW State election being held on 24 March.

Yours sincerely

Member for Coffs Harbour

Shadow Minister for Small Business

Shadow Minister for Forestry” (Emphasis added)

15 By the time the proceedings came on for hearing, it was common ground that the factual substratum of paragraph 3 of the letter was false. The respondent had not sought pre-selection for any Federal parliamentary seat and had made no arrangements to make a “contribution” to the Labor Party by the use of funds raised by the Association with respect to its campaign against the election of a coalition government.

The imputations

16 In his Further Amended Statement of Claim, the respondent pleaded that the letter, in its ordinary and natural meaning, conveyed the following imputations of the respondent, each of which was defamatory:

(a) The respondent, as General Secretary of the New South Wales Nurses Association, improperly took advantage of his position by directing that $1 million of the Association’s members’ subscriptions be spent on a campaign so as to promote his political career;

(b) The respondent, as General Secretary of the New South Wales Nurses Association, was more interested in seeking pre-selection for a safe Labor seat than genuinely helping nurses.

17 As I have indicated, her Honour found that each of these imputations was conveyed by the matter complained of and that each was defamatory of the respondent. There is no challenge to these findings.

The primary judge’s findings with respect to the defence of qualified privilege

18 At [84] of her judgment, the primary judge cited the following passage from the speech of Lord Atkinson in Adam v Ward [1917] AC 309 at 334 where his Lordship said:

“It was not disputed, in this case on either side, that a privileged occasion is, in reference to qualified privilege, an occasion where the person who makes a communication has an interest or a duty, legal, social, or moral to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential.”

19 At [85] her Honour cited the following well known passage from Toogood v Spyring (1834) 1 Cr M and R 181 at 193[1834] EngR 363; ; 149 ER 1044 where the principle was stated in the following terms:

“In general, an action lies for the malicious publication of statements which are false in fact, and injurious to the character of another (within the well known limit as to verbal slander), and the law considers such publication as malicious, unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. In such cases, the occasion prevents the inference of malice, which the law draws from unauthorised communications, and affords a qualified defence, depending upon the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits.” (Emphasis added by her Honour)

20 At [86] her Honour found that the appellant had a relevant interest in communicating the matters raised in the letter to those to whom it was addressed. However, she then noted that the respondent relied upon the proposition that the communication was protected only if it was relevant to the occasion for which the privilege was granted. Although it was conceded that the privilege attached to those parts of the letter that dealt with the political issues with respect to the working conditions of nurses, the State election campaign and the Association’s media campaign with respect to the Federal industrial relations laws, the respondent contended that it did not extend to what the appellant asserted with respect to the respondent in paragraph 3.

21 Her Honour rejected the submission (at [89]). She said:

“There is no doubt in my mind that, had the assertion that Mr Holmes’ participation in the Association’s campaign was motivated by his own personal political ambition been true, it would have been highly relevant to the occasion on which the letter was published, which otherwise, admittedly, did attract qualified privilege. It does not become irrelevant because it is false.

22 The primary judge then made reference at [90] to the following passage in the judgment of the English Court of Appeal (Lord Greene MR, Asquith and Evershed LJJ) in Braddock v Bevins [1948] 1 KB 580 at 590:

“... we should have thought it scarcely open to doubt that statements contained in the election address of one candidate concerning the opposing candidate, provided they are relevant to the matters which the electors will have to consider in deciding which way they will cast their votes, are entitled to the protection of qualified privilege. The electors clearly have an interest in receiving a communication of that kind.”

23 The primary judge then concluded (at [91]) that the present case was a classic illustration of qualified privilege at common law at work. She said:

“The recipients of Mr Fraser’s letter were all individuals who had an interest in receiving information from Mr Fraser concerning matters of health policy generally and the employment conditions of nurses and the validity of claims made on those issues in the context of the election campaign and the competing policies of the main political parties. As I have already indicated, Mr Fraser had a clear interest in making that communication to them.”

24 At [92] her Honour found that notwithstanding its falsity, the letter was published on an occasion of qualified privilege and the defamatory (and false) facts stated in it were relevant to the occasion.

The respondent’s challenge in its notice of contention to the primary judge’s finding of qualified privilege

25 At [91] of her judgment, her Honour noted that Braddock had been referred to with apparent approval by Gleeson CJ in Roberts v Bass [2002] HCA 57; 212 CLR 1. The respondent submitted that as in Roberts, Braddock concerned the election addresses of opposing candidates. The respondent was not such a candidate. Therefore, so the argument ran, Braddock had no application to the present case.

26 Following the passage in Braddock cited by the primary judge, their Lordships added the following (at 590–591):

“As will be seen, there is a good deal of authority for the view that qualified privilege extends the communications by one elector to another in relation to a candidate at an impending election. It would be curious if the interest and duty subsisting between one elector and another were to be rated higher in this respect than the interest and duty subsisting between an elector and a candidate, and we are unable to see any ground for such a distinction ...

...

But there remains the point that the complainant here is not the rival candidate. She is a person who is a supporter and an active supporter of one candidate, she was a prominent local political leader of the party which that candidate claimed to represent in the election, and a person whose support was advertised as a ground for voting for him in the election. Does the qualified privilege extend to cover communications in an election address of matters regarding such a person provided they are relevant to the questions which the electors are to consider? It appears to us to be impossible to draw a distinction between such a person and the candidate himself. Those who identify themselves with the policy of the candidate; who lend him their public support; who choose to stand forth as local leaders of the party which he claims to represent cannot, as it seems to us, demand to be exempt from the risks to which the existence of qualified privilege exposes them. ... The risk is one which is inherent in the game of politics.”

27 In Roberts the Chief Justice noted (at [13]) that:

“...the test of malice must be whether the matter in question was published for the purpose that was said in Braddock v Bevins to attract a privilege, that is to say, the honest expression of views about a candidate for election.”

28 At [14] the Chief Justice continued:

“As Braddock v Bevins makes clear, when, in the course of an election contest, political views damaging to the reputation of a candidate, deliberately intended to harm his or her prospects of election, are published, what attracts the qualified privilege is interest in the honest expression of views, no matter how strongly put and no matter how unreasonable they may be. The purpose of the privilege is not to protect dishonesty or to permit the communication of anything that is represented to be a view, whether or not it is in fact generally held. A statement made in the course of political debate in an election campaign does not become honest merely because it serves a purpose of damaging the reputation, and therefore the electoral prospects, of a candidate. The genuine belief that it is in the public interest that a candidate should be defeated does not cast a mantle of honesty over anything and everything that may be said in order to achieve that objective. The end does not justify any means. A strongly held opinion that a member of Parliament should be voted out of office does not mean that anything said about the member with the object of persuading electors to a like opinion must be treated as honest, and that the use of the privileged occasion was necessarily proper.”

29 The respondent also drew attention to a passage in the judgment of Kirby J in Roberts (at [167]) where his Honour observed that it had been stated in Braddock that it was “scarcely open to doubt” that statements made in an election address of a candidate concerning his opponent, providing they were relevant to the matters which the electors would have to consider in deciding which way they would cast their votes, were “entitled to the protection of qualified privilege”.

30 Subject to the question of relevance, in my view there is nothing in Braddock or Roberts which, in the context of statements made during an election campaign, confines the occasion of qualified privilege to a statement by one candidate with respect to another candidate. Any such limitation would be contrary to common sense. In Braddock itself the Court of Appeal accepted that the privilege existed with respect to a statement by a supporter of one candidate with respect to another candidate. In the present case, the respondent was conducting a campaign on behalf of the Association in support of the re-election of the candidates of the Labor Party. The appellant was himself a candidate and was seeking to undermine the Association’s campaign in support of the Labor Party and against his own party.

31 Given that paragraph 3 complained of was made in the context of a heated election campaign in which industrial relations was a live issue, I cannot but agree with her Honour that the present case was indeed a classic illustration of qualified privilege at common law at work. I would adopt the following paragraph of the appellant’s written submissions on this issue:

“There was evidently a vigorous political debate that had been ongoing for some months in the context of the State election campaign in relation to the Coalition’s policy on the Federal Work Choices legislation. The Nurses Association, and the respondent as its General Secretary, had entered (if not started) the debate insofar as it concerned nurses and had engaged in a pointed campaign, including advertising, media interviews and organised demonstrations in support of the Labor Government’s re-election and was therefore opposed to the National Party, including the appellant.”

32 Subject to the issue of relevance, it is well established that the starting point is that the defence of qualified privilege operates to excuse the complained of publication of inaccurate or untrue and defamatory matters. In the present case, the nature of the occasion in the publication of the matter complained of was, in the circumstances, quintessentially an occasion which attracted the privilege.

33 The respondent nevertheless submitted that paragraph 3 of the letter contained a gratuitous, that is to say, irrelevant, smear or side-swipe against the respondent who was not standing for office and which, therefore, could not have been relevant to the Association’s campaign on behalf of its members.

34 In Adam v Ward at 327, Lord Dunedin stated the test of relevance in the following terms:

“If the defamatory statement is quite unconnected with and irrelevant to the main statement with is ex hypothesi privileged, then I think it is more accurate to say that the privilege does not extend thereto than to say, although the result may be the same, that the defamatory statement is evidence of malice.”

35 The test of relevance has been the subject of two recent decisions of this Court: Lindholdt v Hyer [2008] NSWCA 264 at [125]–[135] per McColl JA; Aktas v Westpac Banking Corporation Ltd (2009) NSWCA 9 at [72]- [78] per McClellan CJ at CL with whom Ipp and Basten JJA agreed. Suffice it to say that the question is whether the imputations arising from paragraph 3 were sufficiently connected to the occasion which attracted the privilege with respect to the balance of the letter.

36 The appellant submitted that in the context of what was an ongoing political debate during an election campaign, and given the stance taken by the Association, any ulterior motive on the part of the Association’s representative, the respondent, for campaigning so enthusiastically against the appellant and his party, was relevant to the occasion of qualified privilege. It was submitted that voters, particularly nurses, in the appellant’s electorate had an interest in knowing the appellant’s view on these matters and were entitled to know if the respondent’s motives on behalf of the Association in spending over $1 million of the Association’s funds in support of the Labor Party was truly to assist the nursing profession.

37 It is true, as McClellan CJ at CL pointed out in Aktas at [73], that it is only matters in respect of which the publication is occasioned by the necessary reciprocity of interest which the law describes as being published on an occasion of qualified privilege. Accordingly, the imputations, to be relevant to the subject matter of that occasion, must not be “truly unconnected” with that subject matter, as Hodgson JA described the test in Bashford v Information Australia (Newsletters) Pty Ltd [2001] NSWCA 470 at [43], or as Sheller JA stated the test at [2], must be “germane and reasonably appropriate to the occasion”.

38 As noted by McColl JA in Lindholdt at [130] the majority of the High Court in Bashford [2004] HCA 5; (2004) 218 CLR 366 at [27] approved Sheller JA’s formulation. Kirby and Callinan JJ approved both tests (at [193] and [235] respectively. Kirby J also observed at [194]):

“All of these formulae are attempts to define the boundaries of discussion that is truly within the scope of the matter of public interest, so as to exclude the introduction of extraneous, irrelevant or marginal and gratuitous imputations that unacceptably do harm to the reputation and honour of an individual. Scientific precision is impossible by the use of such formulae. In every case a judgment is evoked. In some instances the titillating character of an irrelevant defamatory imputation in an otherwise justifiable context will be plain. But in other cases the issue will be more debatable, as Callinan J has correctly recognised.”

39 I would accept the submission of the appellant that in the context of the ongoing political debate during an election campaign whereby the Association through its representative, the respondent, had taken a particular stance with respect to the policies of the Coalition, an ulterior motive on the part of the Association’s representative for campaigning so enthusiastically against the appellant and his party was relevant to the occasion of qualified privilege. In other words, voters and particularly nurses in the appellant’s electorate had an interest in knowing the appellant’s views on these matters and were entitled to know if the Association’s motives and, in particular those of its General Secretary, in spending over $1 million of its funds in support of the Labor Party, were not limited to the assistance of the nursing profession.

40 Although it was suggested by the respondent that even if the first imputation was relevant, the second was not, in my view each was relevant in the context of the manner in which they were conveyed by the occasion which attracted the privilege. I would therefore reject the respondent’s contention that the primary judge erred in finding that the imputations were conveyed on an occasion which attracted common law qualified privilege.

The primary judge’s findings with respect to the question of malice

41 At [93] of her judgment her Honour noted that the defence of qualified privilege is defeated where the communication is motivated by malice. Her Honour then noted that the following particulars of malice were alleged:

“(a) the [appellant] published the matter complained of and the imputations arising therefrom, knowing that the imputations were false or with reckless indifference as to their truth or falsity in that:

(i) the [appellant] gave the [respondent] no or no reasonable opportunity to refute the imputations;

(ii) the [appellant] made no or no reasonable enquiries as to the truth of the matter complained of;

(b) the unfair, extravagant and sensational manner and the extent of the publication of the whole of the matter complained of. In particular, the unfair, extravagant and sensational manner and extended publication is evidenced by the following words contained in the matter complained of and the tenor and content of the matter complained of as a whole: [there followed a reproduction of the first and third paragraphs of [the appellant’s] letter];

(c) the [appellant], in publishing the matter complained of, was actuated by improper purposes, namely, a desire to discredit the [respondent] personally, as evidenced by the matters set out above and the conduct of the [appellant] generally.”

42 Her Honour then observed (at [94]) that what constituted malice was comprehensively stated by the House of Lords in Horrocks v Lowe [1975] AC 135 noting that the following propositions emerged from the speech of Lord Diplock in that case:

“An improper motive in the use of the occasion will destroy the privilege. That improper motive must be the dominant motive. It is insufficient to show that the defendant knows that the statement will or might injure the plaintiff, provided the occasion is, nevertheless, used for its proper purpose. One focus is, therefore, squarely upon the motive of Mr Fraser in publishing the false and defamatory material. He gave no evidence of this. But it may reasonably be inferred that his motive lay in the heat of an election campaign and that his purpose in publishing the letter was to draw to the attention of its recipients what he perceived as the merits of the Coalition against what he perceived as the demerits of the Government. I do not infer that he had any specific intent to injure Mr Holmes; Mr Holmes was an innocent bystander who got in the way of missiles being directed against the Government and its individual members.”

43 Before turning to her Honour’s findings, it will be appreciated from the foregoing paragraph that the appellant did not give evidence at the trial. Nevertheless, evidence was called in his case from Ms Diane Leahy, who was the appellant’s electorate officer at the relevant time. Her evidence was to the effect that she received a draft letter from Adrian Piccoli, the National Party member for Murrumbidgee, which had been forwarded to the Coffs Harbour electorate office email address of the appellant as an attachment. The following exchange then took place:

“Q. Was there any other information that came with that draft letter?

A. Oh well, there was just a covering note just to say, you know, ‘Here’s another draft letter you may wish to use through the campaign to send out to constituents’.

Q. Do you still have that covering note?

A. No, we don’t have the original, no.

Q. Was that just in the text of an email?

A. Yes, it was in the text of an email. These were attachments.

Q. So what did you do when you received that?

A. I printed it out and I put things to one side that I’d need to discuss with Andrew and when I had the opportunity, I would have gone through a whole pile of stuff, this being one of them, to see whether he wanted to send it out.

Q. Do you recall discussing the letter with him?

A. Yes, I do.

Q. What instructions, if any, did he give you about that letter?

A. He said, ‘Well yes, we’ve already written once to the nurses, do you think we should a second letter out?’. It was in the middle of the campaign. There was a lot of media around about the nurses supporting the Labor Party through the campaign so we decided yes, we’d send this letter out.

Q. Did Mr Fraser give you any instructions in relation to who to send that to?

A. Just to the same nurses, the same list as we’d sent the previous one to.

Q. When you same ‘the same list’, is that the list that you referred to in relation to the letter of 16 February?

A. Yes, it is the same list.

Q. So did you do the search again or did you just use the same list?

A. No, we used the same list.

Q. Did you make any changes to the draft? (Exhibit A shown)

HER HONOUR

Q. Did you send that out over Mr Fraser’s name?

A. Yes.

Q. But it is the same letter Mr Piccoli had written?

A. Yes. I would have cut and paste parts of that.

...

Q. Can you just tell the court the changes that you made before you sent it out?

A. I added the last two paragraphs which attached a media release from Jillian Skinner and the last bit saying ‘I hope you find time to read this information’.

Q. Did Mr Fraser then sign it?

A. No. We put his electronic signature on it. There was 600 odd letters, so we have an electronic signature that we use quite often if we’ve got large mail-outs to go.”

44 The respondent administered the following interrogatories to the appellant which he tendered in his own case:

“1. Before publishing the matter complained of did you have any information regarding any of the material contained therein, or regarding the plaintiff generally?

1A. Yes.

2. If the answer to interrogatory 1 is in the affirmative:

(a) what information did you have:?

(b) who or what was the source of that information (please specify what information)?

(c) identify all documents containing such information which you had in your possession at the time of the publication of the matter complained of;

(d) identify all documents containing such information as to which you have been informed, in whole or in part, but which you did not have in your possession at that time of the publication of the matter complained of;

(e) state the use made of each of the documents described or referred to in (c) and (d) above;

(f) identify all matters of past experience and background or of contemporary history or notoriety and anything else relating to the matter complained of which occurred to you prior to publication of the matter complained of.

2A. (a) An email from colleague.

(b) The source of the information was from the Murrumbidgee electorate office.

(c) An email from the Murrumbidgee electorate office.

(d) An email from the Murrumbidgee electorate office.

(e) The email was used as the basis of the letter dated 15 March 2006 sent to the Nurses Association.

(f) That incorrect information on coalition policy had been published by the NSW Nurses Federation and its representatives.

3 Before publishing the matter complained of, did you make any enquiries of any person or persons with a view to ascertaining whether in the material contained herein was true or not?

3A. No. The information was acquired from a colleague.

...

5. Before publication of the matter complained of, did you take any steps other than by way of enquiry of any person or persons, with a view to ascertaining whether any of the material contained in the matter complained of was true or not?

5A. Not to my memory.

7. Prior to publishing the matter complained of, did you or any servant or agent of yours (and, if so, identify that servant or agent) contact or attempt to contact the plaintiff with respect to the material contained in the matter complained of?

7A. No.

...

9. With respect to each source of information disclosed in your answers to interrogatory 2, did you have a view as to:

(a) the nature and/or quality of the information furnished by the source?

(b) the accuracy of the information furnished by the source?

(c) whether the source was biased against the [appellant]?

(d) whether the information furnished by the source required corroboration?

9A. (a) As the information had been supplied by a colleague, I believed it to be well grounded.

(b) I believed that the information was accurate.

(c) No.

(d) No.”

45 The primary judge observed at [97] that the appellant’s answers to interrogatories showed that he had received “information” concerning the material in a letter from a colleague and that he believed this information to be “well grounded” and “accurate”. After noting that in response to an interrogatory asking what “information” he had prior to sending out the letter, the appellant had replied “an email from a colleague”, her Honour observed (at [98]):

“This was hardly informative or forthcoming, but does not appear to have prompted those advising Mr Holmes to press for a more responsive answer. It may be assumed that the ‘email from a friend’ was the material of which Ms Leahy gave evidence, an attachment to which was a copy of the draft of the letter that emanated from Mr Piccoli’s office. But the content of the email, apart from the attachment, was never disclosed. I do not infer, from Ms Leahy’s evidence or from Mr Fraser’s answers to interrogatories, that the email contained specific or concrete information about Mr Holmes’ political ambitions or activities.”

46 I have set out above Ms Leahy’s evidence with respect to what was in the covering email from Mr Piccoli, namely,

“Here’s another draft letter you may wish to use through the campaign to send out to constituents.”

47 However it cannot be gainsaid that it was the respondent who tendered the interrogatories and the answers which included the sworn statement of the appellant that he believed that the “information”, which I would infer would be the contents of the draft letter, to be “well grounded” and “accurate”.

48 Nevertheless the primary judge (at [92]) found that the appellant adopted, uncritically, the draft letter and “made no attempt to ascertain the accuracy or otherwise of the very damaging and patently false assertions against Mr Holmes” in paragraph 3 (emphasis added). It is not clear what her Honour intended by her reference to “patently false assertions”. If this was a finding that the appellant was aware that the assertions were false, then clearly such a finding was not supported by the evidence.

49 Her Honour’s conclusion (at [101]) on the issue of malice was stated in the following terms:

“I have not found this an easy question to resolve. I am satisfied that Mr Fraser was both careless and impulsive (probably understandably so, in the atmosphere of a busy election campaign): but I am also satisfied that he was more than that; he published a seriously defamatory accusation of Mr Holmes, without ever turning his mind to whether it was true or false. As I have said, he accepted unquestioningly and uncritically what he received from Mr Piccoli. That amounts to recklessness.”

She thus concluded that the respondent had established malice against the appellant so that the defence of qualified privilege failed.

The appellant’s challenge to the primary judge’s finding of malice

50 Again, the principles relating to malice have been the subject of recent exposition in this Court particularly in Gross v Weston [2007] NSWCA 1 per Hunt AJA, with whom Handley and McColl JJA agreed, and Lindholdt v Hyer at [136]–[144] per McColl JA.

51 The leading case in the High Court on the subject is Roberts v Bass and, in particular, the following passage from the joint judgment of Gaudron, McHugh and Gummow JJ at [76] is often cited:

”Improper motive in making the defamatory publication must not be confused with the defendant’s ill-will, knowledge of falsity, recklessness, lack of belief in the defamatory statement, bias, prejudice or any other motive than duty or interest for making the publication. If one of these matters is proved, it usually provides a premise for inferring that the defendant was actuated by an improper motive in making the publication. Indeed, proof that the defendant knew that a defamatory statement made on an occasion of qualified privilege was untrue is ordinarily conclusive evidence that the publication was actuated by an improper motive. But, leaving aside the special case of knowledge of falsity, mere proof of the defendant's ill-will, prejudice, bias, recklessness, lack of belief in truth or improper motive is not sufficient to establish malice. The evidence or the publication must also show some ground for concluding that the ill-will, lack of belief in the truth of the publication, recklessness, bias, prejudice or other motive existed on the privileged occasion and actuated the publication. Even knowledge or a belief that the defamatory statement was false will not destroy the privilege, if the defendant was under a legal duty to make the communication. In such cases, the truth of the defamation is not a matter that concerns the defendant, and provides no ground for inferring that the publication was actuated by an improper motive. Thus, a police officer who is bound to report statements concerning other officers to a superior will not lose the protection of the privilege even though he or she knows or believes that the statement is false and defamatory unless the officer falsified the information. Conversely, even if the defendant believes that the defamatory statement is true, malice will be established by proof that the publication was actuated by a motive foreign to the privileged occasion. That is because qualified privilege is, and can only be, destroyed by the existence of an improper motive that actuates the publication.“ (emphasis added)

52 In Gross v Weston, Hunt AJA (at [52]) expressed the view that the joint judgment in Roberts was, relevantly, authority for the following 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.” (Emphasis added)

53 Hunt AJA, prior to stating the above propositions had, relevantly to the present case, made the following observations under the heading “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).” (emphasis added)

The citations referred to in the above paragraphs relate to paragraphs previously cited by his Honour from the joint judgment in Roberts v Bass.

54 For example, their Honours in their joint judgment in Roberts (at [87]) relevantly observed:

“A person who is reckless as to whether the statement is true or false has no positive belief in the truth of the statement. Yet as the above statements of Lord Esher MR in Royal Aquarium and Clark show, recklessness, short of wilful blindness, is not enough to destroy the privilege. It must be accompanied by some other state of mind. 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.”

55 In Lindholt McColl JA (at [141]) observed, in my opinion, correctly:

“Recklessness will only destroy qualified privilege by itself if it amounts to wilful blindness. In less extreme cases, recklessness in combination with other factors may provide cogent evidence that the defendant was acting for an improper purpose, especially where the recklessness is associated with unreasoning prejudice: Roberts v Bass (at [84]–[86]) per Gaudron, McHugh and Gummow JJ. Recklessness is to be distinguished from mere carelessness, impulsiveness or irrationality in arriving at a positive belief that the defamatory matter is true: Horrocks (at 150) per Diplock LJ.”

56 The appellant submitted that her Honour had erred in finding malice given her finding of mere recklessness rather than wilful blindness. True it is that her finding of recklessness was predicated upon her findings that the appellant did not turn his mind to whether the assertions contained in paragraph 3 were true or false and that he had accepted unquestioningly and uncritically what he had received from his colleague, Mr Piccoli. However, in my opinion, those findings of fact did not and cannot of themselves support a finding of wilful blindness.

57 Further, there was no evidence of any relevant accompanying state of mind on the part of the appellant such as anger, hatred, bias or unreasoning prejudice towards the respondent which would be sufficient “other evidence” to accompany recklessness. It is true that her Honour (at [95]) said “[r]ecklessness is equated with knowledge of untruth”. However, if this was intended as a finding of wilful blindness then in my opinion it was unsupported by the evidence, always remembering that the onus of establishing malice lay upon the respondent.

58 The respondent nevertheless relied upon the statements of Gleeson CJ in Roberts at [11]–[14]. At [13] the Chief Justice said, after referring to Braddock:

“But it would be inconsistent with the purpose of the privilege to use the occasion, not for the honest expression of views, but for the publication of defamatory matter, knowing it to be false, or not caring whether it was true or false. Reckless is a word sometimes used to describe the last-mentioned state of mind; but it does simply mean carelessness, even to a high degree. It means ‘indifference to its truth or falsity’. “

59 It is not clear whether the Chief Justice was intending to differ from the views set out in the joint judgment that, absent other evidence such as unreasoning prejudice on the part of the publisher of the defamatory matter, the relevant recklessness must amount to wilful blindness. With respect, I would not regard that test as being satisfied by a finding that the publisher of the defamatory statement did not care whether what he said was true or false or otherwise did not turn his mind to that question. To constitute wilful blindness the recklessness must be gross as was noted in the joint judgment at [84] where their Honours observed:

”In exceptional cases, the sheer recklessness of the defendant in making the defamatory statement, may justify a finding of malice. In other cases, recklessness in combination with other factors may persuade the court that the publication was actuated by malice. 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. ‘When a person deliberately refrains from making inquiries because he prefers not to have the result, when he wilfully shuts his eyes for fear that he may learn the truth’, said this Court in R v Crabbe [67], ‘he may for some purposes be treated as having the knowledge which he deliberately abstained from acquiring.’ In less extreme cases, recklessness, when present with other factors, may be cogent evidence that the defendant used the occasion for some improper motive. This is particularly so when the recklessness is associated with unreasoning prejudice on the part of the defendant.”

60 In the present case not only was there no finding but also there was no evidence to support a finding that the appellant deliberately refrained from making enquiries as to the truth or falsity of the matter asserted in paragraph 3 for fear of learning the truth.

61 The respondent made much of the fact that the appellant did not give evidence at trial. He relied on the respondent’s answers to interrogatories in which he had stated, on oath, that he believed that the information he had received from his colleague, Mr Piccoli, to be “well grounded” and “accurate”. There is nothing in the evidence to suggest that that belief was not honestly held. After all, the draft letter containing paragraph 3 had emanated from a parliamentary colleague with an invitation for the appellant to use it in his campaign. There was nothing on its face which, in my view, gave a reason for supposing that what Mr Piccoli had been lead to believe was false.

62 In the foregoing context the following passage from the joint passage of Roberts is of some relevance (at [109]):

“Cases where recklessness alone will defeat an occasion of qualified privilege are likely to be rare. Usually, they will be cases where the defendant had or was given information which gave a reason for supposing that what the defendant intended to publish was false but the defendant nevertheless published the matter without further inquiry or investigation. Failure to inquire is not evidence of recklessness unless the defendant had some indication that what he or she was about to publish might not be true.”

63 True it is that the appellant failed to enquire further as to whether Mr Piccoli’s belief as to the facts asserted in paragraph 3 was genuinely held by him. But there was no apparent reason for the appellant to believe otherwise. I cannot accept the respondent’s submission that the source of the draft letter, Mr Piccoli, was a suspect source.

64 The respondent further submitted that paragraph 3 of the letter was on its face manifestly dishonest in that the appellant had merely adopted Mr Piccoli’s draft, thereby conveying that he, the appellant, had been led to believe that the respondent was seeking pre-selection to the safe Labor seat of Fowler at the next Federal election and that that was his contribution to the Labor Party. The fact was that it was Mr Piccoli who was so led to believe.

65 Further, so it was submitted, the mere or unthinking adoption by the appellant of the assertion in paragraph 3 of the draft letter that “I find it appalling etc.” required the inference to be drawn that he, the appellant, did not, or had no reason to, himself find it appalling that the respondent was using his position and the subscriptions of the members of the Association to promote his political career. In other words, the appellant could not have had any belief that the assertions were true.

66 The respondent therefore submitted that in the foregoing circumstances the appellant’s failure to make enquiries of the respondent as to whether the assertions in question were true or false was capable of supporting her Honour’s finding that he was actuated by an improper motive in publishing paragraph 3 of the letter.

67 It is true, as Giles JA observed in Lindholdt at [8] that

“...failure to make enquiry is material to the propriety of the appellant’s motive and can contribute to a finding that the motive was not consistent with the duty and interest described by the trial judge.”

68 It is equally true as was pointed out in the joint judgment in Roberts at [76] that if, amongst other things, recklessness is present, it usually provides a basis for inferring that the defendant was actuated by an improper motive for making the publication. However, the passage in question has to be read in the light of the other passages in their Honours’ judgment which, in my view, supports the principles distilled therefrom by Hunt AJA in Gross to which I have referred at [52] above.

69 Furthermore, in my respectful opinion, the respondent’s submissions are not assisted by the unsupported assertion that the reference in the draft letter provided by Mr Piccoli to the appellant that he was “led to believe” that the General Secretary was seeking preselection etc, was the equivalent of a rumour and that, therefore, it was obvious that it was something that Mr Piccoli had made up. Equally, the respondent’s submissions were not assisted by describing the assertions in paragraph 3 as a “gratuitous smear”.

70 The law as propounded by both the High Court and this Court required, in the absence of other relevant evidence, that any recklessness on the part of the appellant in publishing paragraph 3 was so gross as to amount to wilful blindness. I do not accept the respondent’s submission that her Honour’s findings at [101] of her judgment (see [49] above) constituted such a finding or that there was evidence that would support such a finding if such had indeed been made.

71 I accept that the appellant, as her Honour found, unquestioningly and uncritically accepted what Mr Piccoli had asserted in the draft letter which he had invited the appellant to distribute. I also accept that the appellant did not turn his mind as to whether the assertions contained in paragraph 3 were true or false.

72 Nevertheless, the fact that the source of the draft letter was a parliamentary colleague whose honesty and integrity the appellant had no reason to query (insofar as the evidence did not establish to the contrary), and that the evidence in the appellant’s answers to interrogatories was that he believed the assertions in paragraph 3 to be accurate and well founded, in my opinion undermined any potential finding that the appellant was wilfully blind as to whether those assertions were true or false. Reckless he may have been, but that recklessness was not so gross as to constitute wilful blindness, which the law treats as equivalent to knowledge.

73 Accordingly, in my opinion the primary judge erred in finding that the respondent had established that the publication of paragraph 3 by the appellant was actuated by malice. It follows that the defence of common law qualified privilege succeeds.

The primary judge’s findings with respect to the defence of comment/honest opinion

74 It was common ground, as the primary judge noted at [50] of her judgment, that there were three elements to this defence namely,

o that the words contained in the matter complained of are comment (or the expression of opinion, deduction, conclusion etc) as distinct from a statement or assertion of fact;

o that the comment is made, or the opinion is expressed, on a matter of public interest; and

o that there is a factual basis for the comment or opinion contained or identified in the published matter.

75 The common law defence of fair comment has been essentially reproduced in s 31(1) of the 2005 Act which relevantly is in the following terms:

“(1) It is a defence to the publication of defamatory matter if the defendant proves that:

(a) the matter was an expression of opinion of the defendant, rather than a statement of fact, and

(b) the opinion related to a matter of public interest, and

(c) the opinion is based on proper material.”

76 The relevant principles of the common law defence of comment are conveniently set out in the judgment of Giles JA, with whom Ipp JA agreed, in John Fairfax Publications Pty Ltd v O’Shane [2005] NSWCA 164. So far as the first element of the defence is concerned, Giles JA (at [25]) adopted the common law position as explained in Gatley on Libel and Slander, 10th ed (2004) at paragraph 12.6 where the learned author adopted a passage from the judgment of Cussen J in Clarke v Norton [1910] VLR 494 at 499 to the effect that comment is

“something which is or can reasonably be inferred to be a deduction, inference, conclusion, criticism, remark, observation etc.”

77 Giles JA further explained the difference between fact and opinion in the following terms:

“27 There cannot be a clear line between comment and statement of fact. Many defamatory words have elements of fact, conclusion from facts and expression of opinion. A characterisation must nonetheless be made, and the context and circumstances of the use of the words will be important.

28 To illustrate the distinction, the bald statement ‘X murdered his father’ is likely to be regarded as a statement of fact. The same words may be regarded as comment if facts are set out from which can come the inference that X murdered his father, the statement that X murdered his father being the author’s conclusion from the facts. That X murdered his father is likely to be regarded as comment if facts are set out from which can come the inference that X murdered his father and the words are, ‘In my opinion, therefore, X murdered his father’. When the words are less words of fact and more words of evaluation, for example ‘X is a disgrace to humankind’, they are still likely to be regarded as a statement of fact if made as a bald statement, but more readily to be regarded as comment if made after and as a conclusion from a statement such as that X murdered his father.

29 These are but illustrations, and the characterisation in each case depends on more than the mere words. In any given case, the question is whether the words would be regarded by the ordinary reasonable reader as comment or statement of fact, and the defendant must satisfy the tribunal of fact that they would be regarded as comment. All the circumstances are to be taken into account, and it must be remembered that the ordinary reasonable reader does not parse and pore over the published matter as the lawyers are inclined to do at trial ...”

78 There is one possible difference between the defence of comment under the 1974 Act and the statutory defence of honest opinion. Under the 1974 Act, as her Honour recognised at [58] of her judgment, it was the imputations that had to be shown to be comment (or expressions of opinion) as distinct from statements of fact. Under the 2005 Act, it is “the matter” which must be an expression of opinion rather than a statement of fact. The position at common law seems to coincide with that under the 2005 Act. Thus in O’Shane Giles JA stated the common law position as

“requiring [in order for the defence to be established] that the defendant prove that the words complained of are comment as distinct from a statement of fact.”

“Matter” is defined in s 4 of the 2005 Act as “including, amongst other things, a letter, note or other writing ...”. As her Honour observed at [57], the focus is upon the published material as distinct from the imputations pleaded. However in the present case it is unnecessary to resolve, if resolution be necessary, the distinction referred to especially as there must be a diminishing number of cases under the 1974 Act.

79 As her Honour acknowledged (at [60]), the letter, virtually in its entirety, consisted of assertions of (purported) fact – even where those assertions were incorrect.

80 So far as paragraph 3 was concerned, her Honour described it in the following terms:

“61. The letter also contains some reference to Mr Fraser’s personal feelings:

o That he was disappointed that nurses were funding the campaign;

o That he was disappointed and surprised (for reasons given);

o That he believed that Mr Holmes was seeking pre-selection in a safe federal seat and that this was the real reason that the Association was conducting the campaign;

o That he found it ‘appalling’ that Mr Holmes was using his position (as General Secretary of the Association) and ‘subs’ paid by nurses to promote his own political career.”

81 At [62] the primary judge concluded that whilst the statements were about the appellant’s personal feelings, they nonetheless constituted statements of fact. She said:

“Contained within the assertion in paragraph 3 (that Mr Fraser found it ‘appalling’) was the further statement that Mr Holmes was (in fact) using his position and funds of the Association to advance his own political career.”

82 Her Honour concluded this issue in the following terms:

“63. There is no semblance of expression of opinion other than those statements of personal feeling. The nearest Mr Fraser came to expressing an opinion was his characterisation of the conduct he attributed to Mr Holmes as ‘appalling’. Certainly there Mr Fraser was expressing his opinion – but it was his opinion about asserted facts. It is subordinate to the real content of that sentence, which was an assertion that Mr Holmes had behaved in the manner described. Notwithstanding that, I am prepared to treat the statement that Mr Fraser found Mr Holmes’ conduct to be appalling as an expression of opinion about Mr Holmes’ conduct. That cannot, however, convert a publication that is essentially a publication of statements of (purported) fact into the expression of opinion. The defences of fair comment at common law, and honest opinion under s 31(1) of the 2005 Act, fail to meet the first requirement. ...”

83 Her Honour then went on to deal with the second and third elements of the defence upon the assumption that she was incorrect with respect to her finding on the first element. She concluded (at [70]) that the defence both at common law as well as under s 31 failed the third test.

84 Confining myself to the imputations, it was common ground that the form of the imputations was to be ignored in determining whether or not they constituted an expression of opinion or an assertion of fact. Reliance was placed by the appellant upon the judgment of Clarke JA, with whom Handley and Cripps JJA agreed, in Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448 where he observed (at 467) that the relevant test:

“... directs attention to the matter which was published by the defendant and requires the jury to determine whether, in the context of the whole of that published matter, the relevant statements made or published by the defendant were statements of fact or were comment, that is, expressions of opinion or conclusions on facts stated in the material or known to the recipients of the published matter. In these circumstances, the resolution of the question whether the relevant statements were made as comments or statements of fact did not depend upon the form of the imputation which, obviously enough, would not be seen by the recipients of the published matter.”

His Honour continued (at 467–478):

“In my opinion a defendant who raises a defence of comment is obliged to establish that the imputation which the jury has found that the published matter conveyed was conveyed by the writer or speaker as a comment. In this respect, as I have sought to point out, the actual form of the pleaded imputation is not a relevant consideration. What the jury is required to consider is the published material in order to determine whether the writer or speaker conveyed the defamatory statement which, according to its finding, the published matter conveyed as an expression of opinion or conclusion on the one hand or a statement of fact on the other.”

85 His Honour concluded his discussion in the following terms (at 469):

“To sum up, the defence of comment will arise for consideration by the jury only when it is found that the imputations for which the plaintiff contends ... were conveyed by the material published and that those imputations were defamatory. Once the defence of comment is raised the jury is required to consider whether the imputation it has found to arise was made by the defendant as an allegation of fact or as an expression of opinion, on facts stated, or sufficiently indicated, in the published matter. For that purpose it is not to the point that the plaintiff has pleaded his imputation as a statement of fact. The question is to be determined upon a consideration of the published material.”

86 It was suggested in argument that the emphasis by Clarke JA in Radio 2UE upon whether the pleaded imputation was conveyed as a matter of comment or as an assertion of fact has not survived the joint judgment of Gummow, Hayne and Heydon JJ in Channel 7 Adelaide Pty Ltd v Manock [2007] HCA 60; (2007) 232 CLR 245. In that case the Court was concerned with a television promotion containing 28 words spoken while a picture of the plaintiff was displayed on the screen. The plaintiff had pleaded that the words of the promotion only had one meaning, namely, that the plaintiff had deliberately concealed evidence. The defendant denied that the promotion bore that meaning. Their Honours in their joint judgment noted (at [83]) that if the plaintiff’s allegation were to succeed and the defendant’s denial was to be rejected, the defendant’s further alternative plea of fair comment would have to be considered.

87 However, their Honours considered that there would be no disparity or difference between the “precise nature of the defamatory meaning” on the one hand and the “matter” or the “raw material of the actual words employed” on the other. The matter sued on – 28 words spoken while a picture of the plaintiff was displayed on the screen – would have been found to have had the meaning alleged and the only question would be whether those 28 words, bearing that meaning, constituted fair comment.

88 Their Honours then observed (at [83]):

“An initial question will be whether the ordinary reasonable viewer would have understood that the meaning found to be conveyed was conveyed as comment. Another question would be whether that meaning was objectively fair. Another would be whether it was based on true facts. Each of the questions must be answered by treating the comment as being the twenty-eight words in the meaning which the court found.”

A footnote to the first sentence of the above passage referred to Radio 2UE at 469, which I would take to relate to the passage from that decision which I have recorded at [85] above.

89 In my view it is unnecessary to resolve any perceived difference between Radio 2UE and Manock. The common law with respect to the defence of comment is authoritatively stated in the latter decision. It is clear from what their Honours said in [83] that the relevant question is whether the ordinary reasonable viewer, reader or listener would have understood that the meaning found to have been conveyed by the matter complained of was conveyed as fact or comment.

90 In the present case in my opinion her Honour was correct to find that the imputations which she found to have been conveyed by paragraph 3 were, indeed, statements of fact. Equally, in my opinion she was correct to find that insofar as the “matter” referred to in s 31(1) was constituted by the contents of paragraph 3, that that paragraph contained defamatory assertions of fact and not comment or expressions of opinion. In my view the ordinary reasonable reader of paragraph 3 could not have understood otherwise.

91 Accordingly, in my view her Honour was correct to find that the defence of comment, whether at common law or under the 2005 Act, failed. In these circumstances it is unnecessary to consider whether her Honour was correct in finding that the third element of the defence was not satisfied.

92 Equally, it is unnecessary to consider the contention of the respondent that s 31(5)(b) of the 2005 Act does not apply to material published on the same occasion as the expression of opinion but only to material published on a different occasion under qualified privilege. That provision also raises the question of whether it applies in circumstances where, at least in the case of qualified privilege, that privilege has been defeated by a finding of malice. Of course the answer to that question may well depend upon the answer to the contention raised by the respondent.

Conclusion

93 It follows from the foregoing that although her Honour was correct to find that the matter complained of was published on an occasion of qualified privilege, she erred in finding that that defence was defeated by her finding of malice. This being so, the defence of qualified privilege at common law succeeds and is a complete answer to the respondent’s claim. The appeal therefore succeeds.

94 I would therefore propose the following orders:

(a) Appeal allowed;

(b) Set aside the orders made by Simpson J on 12 June 2008;

(c) The proceedings be dismissed;

(d) The respondent to pay the appellant’s costs of the proceedings and of the appeal but to have with respect to the latter a certificate under the Suitors’ Fund Act 1951, if otherwise qualified.

95 McCOLL JA: I agree with Tobias JA.

96 BASTEN JA: I agree with the orders proposed by Tobias JA and with his Honour's reasons.

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LAST UPDATED:
5 March 2009