Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Lloyd-Jones v Allen [2012] NSWCA 230
• Hearing dates: 06.03.12, 07.03.12
• Decision date: 01 August 2012
• Before: Beazley JA at [1]; McColl JA at [2]; Nicholas J at [3]

Decision

(1) Grant leave to appeal.

(2) Direct the appellant to file the notice of appeal in the form of the draft in the White Book within seven days of judgment.

(3) Appeal allowed in part.

(4) Orders (1) and (2) made by Colefax DCJ on 9 May 2011 be set aside.

(5) Remit the matter to the District Court for the determination of:

(i) the defence of truth to the imputations pleaded in (a) and (c) in the statement of claim; and

(ii) in the event the defendant fails to establish the defence of truth to the imputations pleaded in (a) and (c) of the amended statement of claim, the assessment of damages.

(6) Costs of the remitted hearing to be in the discretion of the trial judge.

(7) Each party to bear his and her own costs of the appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: DEFAMATION - defences of truth, common law qualified privilege, comment and honest opinion - letter to community interest group and media publishers - whether defence of truth to all imputations - whether statements of fact or comment - whether each publication made on occasion of common law qualified privilege - whether evidence of malice - award of damages set aside - new trial on limited issues
• Legislation Cited: Defamation Act 2005
• Cases Cited: Aktas v Westpac Banking Corporation [2010] HCA 25; (2010) 241 CLR 79; Andreyevich v Kosovich (1947) 47 SR(NSW) 357; Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354; Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; (2004) 218 CLR 366; Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60; (2007) 232 CLR 245; Cush v Dillon; Boland v Dillon [2011] HCA 30; (2011) 243 CLR 298; Hawke v Tamworth Newspaper Co Ltd [1983] 1 NSWLR 699; Horrocks v Lowe [1975] AC 135; Morosi v Mirror Newspapers [1977] 2 NSWLR 749; Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1; Spautz v Williams [1983] 2 NSWLR 506; Stephens v West Australian Newspapers Ltd [1994] HCA 45; (1994-1995) 182 CLR 211; Toogood v Spyring (1834) 1 Cr M & R 181; 149 ER 1044
• Category: Principal judgment
• Parties: Laurel Lloyd-Jones - applicant/appellant; Anthony James Allen - respondent
• Representation: Counsel: C A Evatt/R Rasmussen - applicant/appellant; B A M Connell/A R Power - respondent; Solicitors: Carters Law Firm - applicant/appellant; Andrew Warren & Associates - respondent
• File Number(s): 09/334582

Decision under appeal

• Date of Decision: 2011-05-09 00:00:00
• Before: Colefax DCJ
• File Number(s): 09/1549

Judgment

1 BEAZLEY JA: I agree with Nicholas J.

2 McCOLL JA: I agree with Nicholas J's reasons and the orders his Honour proposes.

3 NICHOLAS J: This is an application for leave to appeal from the judgment and orders of a judge of the District Court of New South Wales (Colefax DCJ) awarding damages in a defamation action brought by the respondent, Mr Anthony James Allen, against the appellant, Miss Laurel Lloyd-Jones. The hearing proceeded as if on appeal.

4 The respondent's claim arose from the publication on about 7 February 2009 of an email to each of Miss Sarah Curnow, a journalist associated with the programme "Four Corners" produced by the Australian Broadcasting Corporation (Four Corners), the newspaper "The Sydney Morning Herald", and to 17 members of an action group known as the Committee for Reconciliation and Justice (the Committee). The email consisted of a copy of a letter to the Premier of 7 February 2009. The imputations alleged by the respondent were based on the following passage (the relevant passage) from the letter:

"On 26th October 2006 I was asked by the Campbells to attend their home as a witness to a very over-powering and bullying attitude by phone of the Mayor of Bega Valley Shire Council, Mr Tony Allen, who stated that he would be coming to their home within ten minutes to speak to them regarding their letter to the Ombudsman. Mrs Campbell then asked that the Mayor delay his visit till later in the day until her husband was home from school, however the Mayor refused to delay his visit and proceeded to come to their residence.

Mrs Campbell was feeling extremely intimidated by his attitude and immediately contacted me to attend as her support person and to witness the event. She then telephoned her husband at Bermagui Primary School, where he is the Aboriginal Liaison Officer, and he came home due to the urgency of the situation.

Mr Allen and his deputy Mrs Janette Neilson arrived as stated and immediately requested that I leave. The Campbells indicated that I was there at their request and therefore I remained. The Mayor was exceedingly aggressive and controlling in his attitude and basically wanted the Campbells to rescind their complaints to the Minister and Ombudsman and also to ensure that this would not appear in the media. Later I was told by a local newspaper that they were threatened with legal action by the Mayor should this incident be reported. I believe this threat was made in order to protect tourism and property price interests. Therefore no in-depth media release was ever published and very few people in the community were made aware of this racial attack."

5 In his amended statement of claim the respondent pleaded that the letter, in its natural and ordinary meaning, conveyed the following defamatory imputations:

"(a) The plaintiff, the Mayor of Bega Valley Shire, conducted himself inappropriately as Mayor in that he bullied a woman.

(b) The plaintiff, the Mayor of Bega Valley Shire, conducted himself inappropriately as Mayor in that he attended a woman's home against her express wishes.

(c) The plaintiff intimidated a woman by acting in a bullying and overpowering manner over the phone.

(d) The plaintiff was aggressive towards a woman in her home.

...

(g) The plaintiff, the Mayor of Bega Valley Shire, conducted himself inappropriately as Mayor in that he threatened legal action against a newspaper if it reported a complaint about him."

6 The respondent claimed compensatory, including aggravated, damages. No claim was made for publication of the letter to the Premier.

7 By her defence, the appellant denied the imputations were conveyed and were defamatory. In the alternative she pleaded defences of justification (s 25 Defamation Act 2005 (the Act)), contextual truth (s 26), common law qualified privilege, statutory qualified privilege (s 30), fair comment, honest opinion (s 31), and triviality (s 33).

8 In reply to the defence of common law qualified privilege the respondent pleaded that the appellant was actuated by malice in the publication of the matter complained of. To the defence of honest opinion, he pleaded that any such opinion was not honestly held by the appellant.

9 The defences of contextual truth and statutory qualified privilege were abandoned during the trial.

10 The proceedings below were conducted by the trial judge sitting alone. In his judgement delivered on 9 May 2011 his Honour found that the letter conveyed imputations (a), (b), (c), and (d), and that each was defamatory of the respondent. He found imputation (g) did not arise. He rejected the remaining defences.

11 The trial judge also found that the appellant was actuated by malice in publishing the letter.

12 His Honour awarded the respondent damages in the amount of $65,000, which included a component for aggravated damages in the amount of $15,000, and interest. The appellant was ordered to pay the respondent's costs.

13 The appellant appealed from the judgment and orders on the following grounds:

1 His Honour erred in finding the appellant did not honestly believe in the truth of what she wrote.

2 His Honour erred in finding the appellant knew the allegations she made about the respondent in her letter were untrue.

3 His Honour erred in finding the appellant was actuated by express malice.

4 His Honour erred in not upholding the defences of justification, comment and unlikelihood of harm.

5 In rejecting the defence of truth his Honour failed to give adequate or proper reasons.

6 In rejecting the defence of comment his Honour failed to give adequate or proper reasons.

7 In rejecting the defence of unlikelihood harm his Honour failed to give proper or adequate reasons.

14 During the hearing of the appeal, the appeal against the rejection of the defence of triviality, or unlikelihood of harm, was abandoned.

15 By his notice of contention the respondent contended:

(i) that his Honour erred in holding that the letter was published on an occasion of common law qualified privilege; and

(ii) that his Honour should have rejected the defences of comment and honest opinion on the basis that the imputations were statements of fact, not comment or opinion, alternatively, there was an absence of proper material for the basis of any comment or opinion.

Background

The following is a summary of events found by the trial judge or were otherwise uncontroversial

16 At relevant times the respondent was the mayor of Bega Valley Shire Council. The appellant is a member of an organisation known as the Little Followers of St Francis. She has been engaged in social work in the Bega area, and provided assistance to Muriel and Gary Campbell, who are members of an Aboriginal family living in Bermagui.

17 In early October 2006 racist graffiti directed generally towards Aboriginals was painted on a bridge in the Bermagui area. At about that time a scuffle took place on the bridge between some non-Aboriginal youths and the children of Mr and Mrs Campbell.

18 Early on 8 October 2006 the Campbells' home was attacked by a large group of non-Aboriginal youths. Immediately afterwards three of the children of Mr and Mrs Campbell were charged with assault and affray at the Bermagui police station. At a later date a number of non-Aboriginal youths were charged with criminal offences in connection with the incident.

19 On 9 October 2006 a meeting was held at the home of Mr and Mrs Wells to discuss the attack on the Campbells' home. Mr and Mrs Wells had also been the subject of serious anti-social behaviour from some local youths.

20 The respondent and Mrs Neilson, the deputy mayor, attended the meeting. During the meeting Mrs Neilson undertook to arrange for council officers to remove the graffiti from the bridge, and the respondent agreed to speak to a senior local police officer, Commander Loy, about the Campbells' concerns about police attitudes and conduct, and to speak to the local radio station to seek to have broadcast a balanced account of the social tensions. He also undertook to convey the concerns of Mr and Mrs Campbell to the local state member of Parliament.

21 On either 9 or 10 October 2006 the graffiti was painted over. It was not clear on the evidence whether the work was done by council employees or a retired police officer acting on his own initiative.

22 On 22 October 2006 the appellant met Mr and Mrs Campbell and prepared a letter for them to send to the Ombudsman for New South Wales. It detailed their complaint concerning the response of the local police and others to the attack. It included the following:

"We would greatly appreciate it if you could look into this matter on our behalf as we feel that we have been greatly discriminated against by our local police, and also our Bega Valley Shire Mayor, Tony Allen and Assistant Mayor Janette Neilson, who initially promised their support to look into this matter however there has been no further response or action. They asked us not to speak to the media for fear of bringing disrepute to our town's name and further fuelling the incident but we now find that a report on the Bega commercial radio station 2EC was racially slanted in its reporting. We would request that a transcript of this broadcast be made available to us so that an apology might be made.

We would also like the Bermagui Country Club to be instructed that they should not allow those who are inciting violence against the Koori community (especially towards our family) to be served with alcohol while planning such actions. It concerns us greatly that managerial staff were involved with these discussions but did not report these to the police (or us) in order to prevent this happening.

There continues to be a malicious undercurrent of violence toward the Aboriginal community within the white youth of this area, further fuelling hatred and distrust between the two cultures. We believe that this needs closer investigation in order to circumvent further violent behaviour which could ultimately end in far more serious events which we would like to see prevented. We ask that you will give your attention to this serious matter and we look forward to hearing from you in the near future."

A copy of this letter was not sent to the respondent or Mrs Neilson.

23 A factual issue arose at the trial as to whether or not the respondent and Mrs Neilson had carried out the tasks they had said they would do at the meeting on 9 October 2006. The conflict was determined in favour of the respondent and Mrs Neilson. It was found that each had taken the steps promised on that occasion.

24 On 26 October 2006 the respondent received a copy of the letter to the Ombudsman from the editor of the local newspaper. He became very upset when he read it. He immediately telephoned Mrs Neilson. Soon afterwards, the respondent had a telephone conversation with Mrs Campbell in which he proposed to visit her and her husband at their home to discuss the letter. Later that afternoon a meeting took place in the laneway outside the home of Mr and Mrs Campbell. Those present included the respondent, Mrs Neilson, the appellant, and Mr and Mrs Campbell. What happened during the telephone conversation and at the meeting were matters of significant dispute at the trial.

25 On 7 February 2009 the appellant sent the letter being the matter complained of to the Premier, and copies to a journalist with Four Corners, the news desk of "The Sydney Morning Herald" and to the members of the Committee.

The imputations and the defence of truth

26 Section 25 of the Act provides:

"25 Defence of justification

It is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true."

27 The trial judge found that there was no substantial truth in the publication and thereupon rejected the defence that each of the imputations was substantially true. It appears that this conclusion was based on the trial judge's finding (par 93) that at the meeting on 26 October 2006 the respondent did not engage in any threatening, abusive, or aggressive behaviour either verbally or violently towards Mrs Campbell. In so concluding the trial judge accepted the versions of the respondent, Mrs Neilson, and Mr Manns about what happened at the meeting in the laneway in preference to those of the appellant, and Mr and Mrs Campbell.

28 The appellant's challenge was on the ground that no findings were made in respect of the respondent's conduct during his telephone conversation with Mrs Campbell to which the following statements in the letter referred:

"On 26th October 2006 I was asked by the Campbells to attend their home as a witness to a very over-powering and bullying attitude by phone of the Mayor of Bega Shire Council, Mr Tony Allen, who stated that he would be coming to their home within ten minutes to speak to them regarding their letter to the Ombudsman. Mrs Campbell then asked that the Mayor delay his visit until later in the day until her husband was home from school, however the Mayor refuses to delay his visit and proceeded to come to their residence.

Mrs Campbell was feeling extremely intimidated by his attitude and immediately contacted me to attend as her support person and to witness the event ..."

29 The imputations conveyed by this passage were those which allege the respondent was guilty of bullying, namely:

"(a) The plaintiff, the Mayor of Bega Valley Shire, conducted himself inappropriately as Mayor in that he bullied a woman ...

(c) The plaintiff intimidated a woman by acting in a bullying and overpowering manner over the phone."

30 The respondent's conduct at the meeting was described in the letter as follows:

"Mr Allen and his deputy, Mrs Janette Nielson, arrived as stated and immediately requested that I leave. The Campbells indicated that I was there at their request and therefore I remained. The Mayor was exceedingly aggressive and controlling in his attitude and basically wanted the Campbells to rescind their complained [sic] to the Minister and Ombudsman and also to ensure that this would not appear in the media. Later I was told by a local newspaper that they were threatened with legal action by the Mayor should this incident be reported. I believe this threat was made in order to protect tourism and property prices. Therefore no in-depth media release was ever published and very few people in the community were made aware of this racial attack."

31 The imputations referable to the respondent' conduct at the meeting were:

"(b) The plaintiff, the Mayor Bega Valley Shire, conducted himself inappropriately as Mayor in that he attended a woman's home against her express wishes ...

(d) The plaintiff was aggressive towards a woman in her home."

Determination

32 Under s 25 of the Act the issue is whether the defamatory imputations are substantially true. Where the defence is pleaded to multiple imputations the court is required to consider the evidence in respect of each imputation in order to determine whether or not the defendant has proved that it is substantially true. In this case, based on the statements in the letter, imputations (a) and (c) concerned the respondent's conduct during the telephone conversation, and imputations (b) and (d) concerned his conduct at the meeting.

33 The trial judge's finding upon which the defence to all the imputations was rejected was expressly confined to the respondent's conduct at the meeting, and followed a detailed analysis of the evidence of what happened on that occasion. He undertook no analysis of the evidence of, and made no finding as to the respondent's conduct during, the telephone conversation.

34 Conflicting versions of a telephone conversation was given by both the respondent and Mrs Campbell. The respondent denied that his attitude was over-powering and bullying. He asserted the imputations were false. He denied he told Mrs Campbell he would be coming to her home in 10 minutes, although she had requested him to delay until her husband was there. Mrs Campbell's evidence included the following:

"Well I got a phone call from Mr Allen and he asked me if he could come up to my house to have a meeting with me and Gary and I explained to him that I was at the house on my own. I told him I didn't want him to come there because I was just still terrified about what happened and I specifically told him I did not want him to come, I was at the house on my own. But his reply to me on the phone was, 'I'm sorry Muriel, but I am on my way' and then he hung up. I started to panic."

35 The appellant gave evidence of Mrs Campbell's distress and anxiety as a result of the conversation.

36 The issue of the truth of imputations (a) and (c) necessitated resolution of the competing accounts of the telephone conversation, and of the respondent's conduct during it. The trial judge's failure to do so precluded rejection of the defence that these imputations were substantially true.

37 There was no challenge to the trial judge's conclusion in respect of the respondent's conduct at the meeting, and the consequential rejection of the defence of truth to imputations (b) and (d).

Comment and honest opinion

38 At the trial the appellant relied on the defences of fair comment, and honest opinion under s 31(1) of the Act. In rejecting both defences, the trial judge said only:

"Reference to the relevant passage of the letter to the Premier will quickly reveal that the defendant made no reference to the relevant facts."

39 There is an appeal from this ruling. In his notice of contention, the respondent contended that the defences of comment and honest opinion should have been rejected on the basis that the imputations were statements of fact, not comment or opinion, alternatively, there was an absence of proper material for the basis of any comment or opinion.

40 It was common ground that the imputations were congruent with the statements in the letter.

The principles

41 The principles applicable to the defence of comment were stated by Hunt J in Hawke v Tamworth Newspaper Co Ltd [1983] 1 NSWLR 699, p 704:

"In every case where comment is relied upon as a defence, there is a preliminary legal issue as to whether the statement in question is capable of being construed as a comment (in that it is an opinion which could possibly be held on the material indicated as its basis), followed by the factual issue as to whether that statement is to be construed in fact as an expression of opinion - which is answered in part by asking whether the ordinary reasonable reader would have understood the statement as having been intended by its author to be an expression of opinion based upon sufficiently indicated material: Bickel's case [1981] 2 NSWLR 474, at 490, 492. The material upon which the comment is based must be stated expressly or impliedly in the matter complained of or it must constitute a matter of contemporary history or general notoriety and thus, in one way or another, be made known to the readers to enable them to judge for themselves whether they agree with the published opinion based upon that material: the authorities are collected in NRMA Insurance Ltd v Flanagan (Hunt J, 6th February, 1981, unreported), viz: Myerson v Smith's Weekly Publishing Co Ltd (1923) 24 SR (NSW) 20, at 27; Goldsbrough v John Fairfax & Sons Ltd (1934) 34 SR (NSW) 524, at 531, 532 and Orr v Isles (1965) 83 WN (Pt 1) (NSW) 303, at 321, 329, 330; Bickel's case [1981] 2 NSWLR 474, at 498."

42 In Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60; (2007) 232 CLR 245, Gummow, Hayne, and Heydon JJ said:

"35 Distinguishing fact and comment. In Brent Walker Group Plc v Time Out Ltd Bingham LJ said:

'The law is not primarily concerned to provide redress for those who are the subject of disparaging expressions of opinion, and freedom of opinion is (subject to necessary restrictions) a basic democratic right. It is, however, plain that certain statements which might on their face appear to be expressions of opinion (as where, for example, a person is described as untrustworthy, unprincipled, lascivious or cruel) contain within themselves defamatory suggestions of a factual nature. Thus the law has developed the rule ... that comment may only be defended as fair if it is comment on facts (meaning true facts) stated or sufficiently indicated.'

In Goldsbrough v John Fairfax & Sons Ltd Jordan CJ said that for the defence of fair comment to succeed, "it is essential that the whole of the words in respect of which it is relied on should be comment". He continued:

'It must be indicated with reasonable clearness by the words themselves, taking them in the context and the circumstances in which they were published, that they purport to be comment and not statements of fact; because statements of fact, however fair, are not protected by this defence. In other words, it must appear that they are opinions stated by the writer or speaker about facts, which are at the same time presented to, or are in fact present to, the minds of the readers or listeners, as things distinct from the opinions, so that it can be seen whether the opinions are such that they can fairly be formed upon the facts.'

A 'discussion or comment' is to be distinguished from 'the statement of a fact'. 'It is not the mere form of words used that determines whether it is comment or not; a most explicit allegation of fact may be treated as comment if it would be understood by the readers or hearers, not as an independent imputation, but as an inference from other facts stated.' As the passages quoted from Bingham LJ and Jordan CJ above illustrate, the distinction between fact and comment is commonly expressed as equivalent to that between fact and opinion.

...

36 The question of construction or characterisation turns on whether the ordinary reasonable 'recipient of a communication would understand that a statement of fact was being made, or that an opinion was being offered - not 'an exceptionally subtle' recipient, or one bringing to the task of 'interpretation a subtlety and perspicacity well beyond that reasonably to be expected of the ordinary reader whom the defendant was obviously aiming at'.

...

45 ... It is often said ... in addition to the rule ...that the fair comment defence does not apply to material unless it is in truth comment rather than fact, there is a rule that material cannot be fair comment unless 'the facts on which it is based are stated or indicated with sufficient clarity to make it clear that it is comment on those facts'. That is, the alleged comment must be sufficiently linked to facts being commented on by reason of those facts being stated in the publication containing the comment, or being referred to in it, or being notorious."

43 In short, to be protected by the defence of fair comment or honest opinion, the defamatory matter must be recognisable as comment and not as a statement of fact. The first necessary step is the objective exercise to decide whether the reader (or viewer or listener) is able to identify the communication as a comment rather than a statement of fact (Gleeson CJ in Manock par 4).

Determination

44 At the trial, and before this Court, the appellant submitted that the statement "... a witness to a very over-powering and bullying attitude by phone ..." and "Mrs Campbell was feeling extremely intimidated by his attitude ..." were comments based on the stated facts that:

"...Mayor of Bega Shire Council, Mr Tony Allen, who stated that he would be coming to their home within ten minutes to speak to them regarding their letter to the Ombudsman. Mrs Campbell then asked that the Mayor delay his visit until later in the day until her husband was home from school, however the Mayor refuses to delay his visit and proceeded to come to their residence."

45 It was also submitted that the statement "The Mayor was exceedingly aggressive and controlling in his attitude ..." was comment based on the stated fact that "... (he) basically wanted the Campbells to rescind their complained [sic] to the Minister and Ombudsman and also to ensure that this would not appear in the media".

46 In my opinion the imputations alleged were in substance the same as what was said in the relevant passage. Objective consideration, in context, of the statements which conveyed the imputations shows that they were presented in the form, not of comment, but of fact and are recognisable as such. The statements descriptive of the respondent's attitude on the phone, and at the meeting, do not appear to be deductions from, or supported by, other facts. In my opinion the statements relied upon for these defences, whether taken separately or together, are not comment or expressions of opinion. Accordingly, the defences of fair comment and honest opinion must fail.

47 Although the trial judge's reasoning on this issue is succinct, having regard to the principles to which he expressly referred, it appears that the defences were rejected because the factual basis for any comment or opinion was not included in the relevant passage of the letter. Implicit in his conclusion is the finding that the meanings complained of were statements of fact. It follows, in my opinion, that the trial judge was correct in dismissing these defences. To the extent that it is necessary to say so, the respondent's contention is upheld.

48 As the appellant failed to prove that the statements were expressions of opinion, it is unnecessary to consider the issue of defeasance under s 31(4) of the Act, namely, whether the respondent had proved that the opinion was not honestly held at the time of publication.

Qualified privilege

49 At the trial the appellant relied on the defence of common law qualified privilege. The trial judge held that the publication of the letter to each of the recipients namely the journalist with Four Corners, the news desk of "The Sydney Morning Herald", and to the members of the Committee was made on an occasion of qualified privilege having found that the necessary reciprocity of interest had been established.

50 However, the defence failed because it was held that the publications were actuated by express malice based on findings that the appellant lacked an honest belief in the truth of what she wrote, and knew the allegations about the respondent were false.

51 The appellant appeals from the finding of malice. The respondent contended that the trial judge erred in holding that the publications were made on occasions of qualified privilege and denied the existence of the necessary reciprocity of interest in each case.

52 The Committee for Reconciliation and Justice was a group specifically formed by the friends and supporters of Mr and Mrs Campbell to assist them in their problems dealing with racist behaviour in the Bega Valley Shire. The appellant was one of the group. The letter was sent by email to 17 members of the Committee on 7 February 2009.

53 On the same day the letter was sent by email to Sarah Curnow, a journalist associated with the television programme "Four Corners" produced by the ABC, and also to the news desk of the newspaper "The Sydney Morning Herald". The appellant accepted that the scope of these publications was wide.

Principles

54 The principles applicable to the defence of qualified privilege at common law were stated by Parke B in Toogood v Spyring (1834) 1 Cr M & R 181 at 193; 149 ER 1044 at p 1049:

''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 limits 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 unauthorized 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."

55 In Aktas v Westpac Banking Corporation [2010] HCA 25; (2010) 241 CLR 79 French CJ, Gummow and Hayne JJ said:

"14 ... As a general proposition, the common law protects the publication of defamatory matter made on an occasion where one person has a duty or interest to make the publication and the recipient has a corresponding duty or interest to receive it; but the privilege depends upon the absence of malice. The requirement of reciprocity of interest generally denies the common law privilege where the matter has been disseminated to the public at large."

56 With reference to Toogood v Spyring, in Cush v Dillon; Boland v Dillon [2011] HCA 30; (2011) 243 CLR 298 French CJ, Crennan, and Kiefel JJ confirmed at [11] that reciprocity of duty and interest is "... the hallmark of the common law defence of qualified privilege". They said:

"12 The defence of qualified privilege is based upon notions of public policy, that freedom of communication may in some circumstances assume more importance than an individual's right to the protection of his or her reputation. The question of whether the person making a defamatory statement was subject to some duty or was acting in the protection of some interest, in making the statement, is to be understood in this light."

57 In Andreyevich v Kosovich (1947) 47 SR(NSW) 357 at pp 363-364 Jordan CJ held that in order for the defendants in that case to succeed in the defence of qualified privilege:

"... it was necessary that they should show by evidence that both the givers and the receivers of the defamatory information had a special and reciprocal interest in its subject matter, of such a kind that it was desirable as a matter of public policy, in the general interest of the whole community of New South Wales, that it should be made with impunity, notwithstanding that it was defamatory of a third party. 'The word 'interest', as used in the cases, is not used in any technical sense. It is used in the broadest popular sense, as when we say that a man is 'interested' in knowing a fact - not interested in it as a matter of gossip or curiosity, but as a matter of substance apart from its mere quality as news': Howe v Lees. 'The interest relied on as a foundation of privilege must be definite. It may be direct or indirect, but it must not be vague or unsubstantial. So long as the interest is of so tangible a nature that for the common convenience and welfare of society it is expedient to protect it, it will come within the rule': Ibid."

58 In Stephens v West Australian Newspapers Ltd [1994] HCA 45; (1994-1995) 182 CLR 211, p 242, Brennan J explained the basis for the limited availability of the defence:

"As Evatt J pointed out in Telegraph Newspaper Co Ltd v Bedford, the 'guiding principle' of reciprocal duty or interest, which is necessarily broad and general, is based solely on public utility. When a publication is said to have been made in discharge of a social or moral duty, the occasion is privileged only if it be in 'the interest of the community', 'for the welfare of society' or 'for the good of society in general' - these phrases being synonyms for Baron Parke's 'for the common convenience and welfare of society'. When it is said that a publication is privileged because it is made in the public interest, 'interest' is not to be equated with curiosity. It is used in a non-technical sense to mean that the publication is made for the welfare of society. As Bedford's case illustrates, a publication defamatory of the plaintiff is not made on an occasion of qualified privilege merely because the person or persons to whom it is made - in that case, the readers of the newspaper - were interested in the subject matter. And, if the publication is made to protect an interest of the person making the defamatory statement, the publication is protected only if it be made to 'a person who, if the defamatory matter be true, may reasonably be expected to be of service in the protection of the interest'. The common law places a higher value on the protection of personal reputation than on the satisfaction of curiosity or on the dissemination of defamatory material which is not reasonably calculated to be of service in the protection of the interests of the person making the defamatory statement."

59 In Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354 at p 358 the type of interest relevant to the defence of qualified privilege at common law was described as "... an interest material to the affairs of the recipient of the information such as would for instance assist in the making of an important decision or the determining of a particular course of action."

60 In Morosi v Mirror Newspapers [1977] 2 NSWLR 749 this court, after an extensive review of the authorities, held that defamatory statements do not come within the scope of common law qualified privilege merely because they may relate to a matter of public interest. It said (p 778):

"To place these statements in perspective in the law of defamation, it should be realized that the common law does not place newspaper editors or journalists in any different position to that of other citizens. Lord Shaw, in giving the judgment of the Privy Council in Arnold v. The King- Emperor said: "Their Lordships regret to find that there appeared on the one side in this case the time-worn fallacy that some kind of privilege attaches to the profession of the Press as distinguished from the members of the public. The freedom of the journalist is an ordinary part of the freedom of the subject, and to whatever lengths the subject in general may go, so also may the journalist, but, apart from statute-law, his privilege is no other and no higher. The responsibilities which attach to his power in the dissemination of printed matter may, and in the case of a conscientious journalist do, make him more careful; but the range of his assertions, his criticisms, or his comments is as wide as, and no wider than, that of any other subject. No privilege attaches to his position."

It is apparent from these decisions and dicta that, at common law, a publication in a newspaper is not the subject of qualified privilege merely because it gives the public information concerning a matter in respect of which the public is interested. Something more is needed which is said in some circumstances to constitute a duty, and in other circumstances an interest, on the part of the newspaper to communicate the information."

and (p 792):

"Newspapers play an important role in our society, but that role does not call for an unrestricted licence to defame people, simply because it can be shown that the defamatory material was part of an article or other form of publication on a matter of public interest, and that the publication was not malicious. Defamatory publications on matters of public interest are protected under the common law, and by statute, in various ways, but something more than mere public interest is required. It may be truth; or it may be reasonableness, in all the circumstances, of the conduct of the publisher in making the publication; or it may be some other requirement."

61 In Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; (2004) 218 CLR 366 McHugh J, who dissented in the outcome, explained the task of the court in determining whether the occasion on which a communication is made is an occasion of qualified privilege. He said:

"54 ... In determining whether the occasion was privileged, the court examines all the circumstances of the case. They include the nature of the defamatory communication, the status or position of the publisher, the number of recipients and the nature of any interest they had in receiving it, and the time, place and manner of, and reason for, the publication. After considering these matters, the court makes a judgment as to whether the publisher had a duty or interest that justified making the publication and whether the recipients, or some of them, had a duty to receive or interest in receiving it. Evaluating these questions of duty and interest usually involves questions of public policy. In Toogood v Spyring, Parke B said that "[i]f fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society". Griffith CJ cited this passage with approval in Howe & McColough v Lees. There, Griffith CJ explained that the reference to the welfare of society did not mean that the person who made the communication was under an obligation to publish and was justified in publishing it to the public at large. Rather, according to his Honour, the phrase means that the interests of society in general require that a communication made under the particular circumstances to the particular person should be protected.

55 It is of the first importance to understand that references to concepts such as "the common convenience and welfare of society" and similar phrases record a result and explain why the communication and the relevant duty or interest gave rise to an occasion of qualified privilege. Such concepts are not the determinants of whether the occasion is privileged. They must be distinguished from the question whether society would recognise a duty or interest in the publisher making, and the recipient receiving, the communication in question ..."

62 The essential question for the court is whether the letter and, particularly, the relevant passage, being defamatory of the respondent, was published in circumstances where the reciprocity of interest between the appellant and the recipients of the letter was of such a kind that it was for the common convenience and welfare of society that its publication be protected. The judgment is to be made after examination of all the circumstances of the case (Andreyevich pp 363-364; Bashford pars 54, 55).

Determination

63 The letter is a request to the Premier to consider matters involving the mistreatment of Aboriginals by persons in authority, including the police and the respondent. It provides an account of a violent racist attack upon the Campbells' home on 8 October 2006, and the response and attitude of the police in subsequently dealing with the participants. The appellant calls for an investigation into the handling of the matter. She refers to assisting the Campbells in making a complaint in a letter to senior officials, including the Minister for Police and the NSW Ombudsman regarding the procedures followed by the investigating police. It was dated 22 October 2005 and included the following:

"We would greatly appreciate it if you could look into this matter on our behalf as we feel that we have been greatly discriminated against by our local police, and also our Bega Valley Shire Mayor, Tony Allen and Assistant Mayor Janette Neilson, who initially promised their support to look into this matter however there has been no further response or action. They asked us not to speak to the media for fear of bringing disrepute to our town's name and further fuelling the incident but we now find that a report on the Bega commercial radio station 2EC was racially slanted in its reporting. We would request that a transcript of this broadcast be made available to us so that an apology might be made."

64 The relevant passage of which the respondent complained in these proceedings described the meeting on 26 October 2006 which he arranged for the purpose of questioning Mrs Campbell about the letter to the Ombudsman.

65 The letter provides a narrative of the aftermath of the attack, and of the action taken by a senior police officer as a result of the complaint. It continues with a description of another attack on Mr and Mrs Campbell and family members whilst walking home in the early hours of New Year's Day 2009 in which Mr Campbell was seriously injured. The letter concludes with the following statements:

"I believe that better leadership by those in responsible positions, especially a review of local policing culture and the founding of instructive programs to build better understanding is urgently needed so that we might circumvent far more serious events from occurring.

I respectfully request that you give this situation your consideration and that you take subsequent action to closely and independently investigate mine and indeed the wider community's concerns by introducing remedial measures so as to improve this situation."

66 I turn first to the publication to the members of the Committee.

67 The letter complained of the mistreatment of, and indifference towards, Aboriginals in the local community by the police and others in positions of authority, exemplified by the history of events which involved the Campbells.

68 The appellant had an interest and moral duty to communicate this information to the members of the Committee, being a group concerned to provide assistance and support for the Campbells arising out of the events described in the letter. The members of the Committee had a corresponding interest in being given, and knowing of, the information to enable consideration of any action to be taken to alleviate or remedy the situation of the Campbells, and other Aboriginals in the local community. In my opinion, in these circumstances, there was such a reciprocity of interest as to attract the common law protection of qualified privilege to the publication of the letter.

69 For the respondent, it was submitted that the passage defamatory of the respondent was irrelevant to the subject matter of the letter and, hence, outside the protection. In my opinion the submission should not be accepted. The relevant passage describes the respondent's reaction to the Campbells' letter to the Minister and Ombudsman which complained of discrimination and inaction by the police, the respondent, and the Deputy Mayor (specific reference was made to the Campbells' letter to the Minster and Ombudsman it is in the immediately preceding paragraph). It is self-evident that the statements in the passage concerning the respondent were relevant to, and part of, the history of events to which the appellant referred in support of the complaint.

70 Accordingly, in my opinion, the trial judge was correct in finding that publication to members of the committee was made on an occasion of common law qualified privilege.

71 It is convenient to consider together the question whether the publication addressed to the news desk of "The Sydney Morning Herald", and to Sarah Curnow from Four Corners were also made on occasions of qualified privilege as found by the trial judge. With respect to publication to "The Sydney Morning Herald" it was found that the letter was sent to a journalist employed by the newspaper who had a specific interest in Aboriginal affairs, which was sufficient to establish the necessary reciprocity of interest. As to publication to the "Four Corners" programme, it was found that the programme itself appeared to have a specialist interest in Aboriginal affairs which was sufficient to establish the necessary reciprocity of interest. In my opinion, however, the trial judge erred in finding that these publications were made on occasions of qualified privilege.

72 The appellant correctly accepted that the scope of these publications was wide. The evidence demonstrated that each was made, unsolicited, to unidentified persons of uncertain number who happened to read it, regardless of any special interest which he or she might have had. The appellant submitted that to establish the relevant interest in journalists employed by the newspaper and the ABC it was sufficient that, from time to time, they published stories and reports on Aboriginal affairs.

73 The circumstances in this case demonstrated no more than that the appellant communicated the information to the recipients because it appeared to be of public interest sufficient to lead to the publication of stories based on it. In other words, the publications were made in the hope that they, in turn, would generate the publication of reports to the public at large by a newspaper and television which would encourage the relevant authorities to act upon, and remedy, the complaints. However, the fact that the subject matter was of public interest does not establish an interest or duty in the appellant to publish to journalists or programme producers matter which included defamatory statements concerning the respondent. There was no interest to be protected by sending the letter to them; they were not persons with an interest or duty to investigate or remedy the matters of which complaint was made. Furthermore, there was no duty or interest in the recipients to republish to the world at large the defamatory matter included in it. I reject the appellant's submissions on this issue.

74 It follows that the respondent's contention that there was no occasion of qualified privilege in respect of these publications must be upheld.

Malice

75 As the publication to the Committee was on an occasion of qualified privilege, it is necessary to determine the issue of malice.

76 The trial judge held that each publication was actuated by express malice and rejected the defences of qualified privilege. He said:

"129 ... The presumption of honesty of purpose has therefore clearly been negated by the plaintiff: viz because the material was false and known by the defendant to be false, and its inclusion in the letter to the Premier was not necessary to the main subject-matter of the letter, the only available inference is that that improper motive was the dominant reason for its inclusion in the publication to the media outlets and the local action group."

77 The principles applicable to the determination of the question whether the making of a defamatory publication was actuated by express malice were, relevantly, explained by Gaudron, McHugh, and Gummow JJ in Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1 as follows:

"76 Improper motive in making the defamatory publication must not be confused with the defendant's ill-will, knowledge of falsity, recklessness, lack of belief in the defamatory statement, bias, prejudice or any other motive than duty or interest for making the publication. If one of these matters is proved, it usually provides a premise for inferring that the defendant was actuated by an improper motive in making the publication. Indeed, proof that the defendant knew that a defamatory statement made on an occasion of qualified privilege was untrue is ordinarily conclusive evidence that the publication was actuated by an improper motive ...

77 If the defendant knew the statement was untrue when he or she made it, it is almost invariably conclusive evidence of malice. 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 the motive ...

96 Statements in the cases to the effect that the defendant will lose the protection of the privilege unless he or she had an honest belief in the truth of what that person published must be understood in the light of two matters. First, honesty of purpose is presumed in favour of the defendant. It is for the plaintiff to prove that the defendant did not use the occasion honestly or, more accurately, for a proper purpose. 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. It is understandable therefore that judges will often say that qualified privilege is destroyed when the defendant has no honest belief in the truth of the matter but really mean that it is destroyed when the defendant knew that the matter was false. Indeed, as the quotation that we have just set out shows, Lord Diplock does that very thing in Horrocks. 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 Because honesty is presumed, the plaintiff has the onus of negativing it. That is to say, the plaintiff must prove that the defendant acted dishonestly by not using the occasion for its proper purpose. Unless that is kept in mind, there is a danger that reference to the honesty of a defendant will reverse the onus of proof. If the tribunal of fact rejects the defendant's evidence that he or she positively believed in the truth of what he or she published, it does not logically follow that the plaintiff has proved that the defendant did not believe in the truth of the publication or had an improper motive. Rejection of the defendant's evidence, combined with other evidence, may lead to the conclusion that the defendant had no belief in the truth of the publication or knew that it was false. But mere rejection of the defendant's evidence does not logically and automatically lead to any conclusion as to what his or her state of mind was. "[B]y destroying that evidence you do not prove its opposite"

...

103 Carelessness of expression or carelessness in making a defamatory statement never provides a ground for inferring malice. The law of qualified privilege requires the defendant to use the occasion honestly in the sense of using it for a proper purpose; but it imposes no requirement that the defendant use the occasion carefully. Even irrationality, stupidity or refusal to face facts concerning the plaintiff is not conclusive proof of malice although in "an extreme" case it may be evidence of it. And mere failure to make inquiries or apologise or correct the untruth when discovered is not evidence of malice.

104 Finally, in considering whether the plaintiff has proved malice, it is necessary that the plaintiff not only prove that an improper motive existed but that it was the dominant reason for the publication."

78 In Horrocks v Lowe [1975] AC 135 (pp 150, 151) Lord Diplock said:

"Judges and juries should, however, be very slow to draw the inference that a defendant was so far actuated by improper motives as to deprive him of the protection of the privilege unless they are satisfied that he did not believe that what he said or wrote was true or that he was indifferent to its truth or falsity. The motives with which human beings act are mixed. They find it difficult to hate the sin but love the sinner. Qualified privilege would be illusory, and the public interest that it is meant to serve defeated, if the protection which it affords were lost merely because a person, although acting in compliance with a duty or in protection of a legitimate interest, disliked the person whom he defamed or was indignant at what he believed to be that person's conduct and welcomed the opportunity of exposing it. It is only where his desire to comply with the relevant duty or to protect the relevant interest plays no significant part in his motives for publishing what he believes to be true that "express malice" can properly be found ...

... there is only one exception to the rule that in order to succeed the plaintiff must show affirmatively that the defendant did not believe it to be true or was indifferent to its truth or falsity. Juries should be instructed and judges should remind themselves that this burden of affirmative proof is not one that is lightly satisfied.

The exception is where what is published incorporates defamatory matter that is not really necessary to the fulfilment of the particular duty or the protection of the particular interest upon which the privilege is founded."

79 In Spautz v Williams [1983] 2 NSWLR 506 p 520, Hunt J considered what has to be proved in relation to the issue of malice. He said:

"(2) Substantial evidence, and not surmise or a mere scintilla, is required: Laughton v Bishop of Sodor and Man (1872) LR 4 PC 495, at 505; Mowlds v Fergusson (1939) 40 SR (NSW) 311, at 332; 57 WN 20, at 27; Oldfield v Keogh (1941) 41 SR (NSW) 206, at 214; 58 WN 169, at 173; Godfrey v Henderson (1944) 44 SR (NSW) 447, at 454; 61 WN 245, at 250; Turner (orse Robertson) v Metro-Goldwyn-Mayer Pictures Ltd [1950] 1 All ER 449, at 459, 472. Malice must be proved positively, by credible evidence. Mere conjecture does not suffice. It must be well-proved that the occasion was being abused by being used for some purpose foreign to that for which it is given: Australian Consolidated Press Ltd v Uren (1966) 117 CLR 185, at 211; Horrocks v Lowe [1975] AC 135, at 149, 150, 151. What must be proved is that the foreign purpose was the dominant motive for the defendant's publication: Horrocks v Lowe [1975] AC 135, at 149, 150, 151."

Determination

80 The crucial question is whether the respondent discharged the onus of proving that publication of the letter to the Committee was actuated by malice. Courts are to keep in mind that the burden of affirmative proof is not lightly satisfied, and substantial evidence is required (Horrocks p 151; Spautz p 520).

81 The trial judge's inference of improper motive was drawn from findings that the appellant knew the defamatory statements to be false, and that their inclusion in the letter to the Premier was unnecessary. Acceptance of the respondent's version of events in the laneway was the basis for the inference that the appellant knew the defamatory statements were false. The trial judge found the inclusion of the statements about the respondent's conduct which had occurred two years previously was unnecessary and gratuitous, and that no explanation had been given for the delay in complaining to an authority about it. These considerations led to rejection of the submission that the appellant honestly believed what she wrote to be true, but was wrong.

82 The appellant gave evidence in chief that she believed that everything in the letter, including the statements concerning the respondent, was true. To the extent that she was cross-examined on statements concerning the respondent in the letter to the Ombudsman, and in the relevant passage, she asserted they were factually true, she believed them to be so, and she denied they were false. Her evidence relevant to the telephone call included her observation that Mrs Campbell was in tears when she rang, and was definitely upset because he (the respondent) said he was coming "... whether she liked it or not" (Black Book p 515). Her evidence was consistent with Mrs Campbell's account that immediately after the telephone conversation with the respondent she rang the appellant, explained what had happened, and asked the appellant to come to the house because she did not want to be there on her own when the respondent arrived.

83 The appellant also said that the letter was written when the Campbells came to see her after the second attack, and because no police action had been taken. This evidence was neither challenged nor contradicted. It is self-evident that the letter records the inaction of authorities following the attacks in October 2006 and January 2009. That it includes statements concerning the respondent's conduct on an occasion more than two years before the letter was written provides no support for the conclusion that it was published with an improper motive. I have earlier held that the statements were relevant to the subject matter of the letter (par 69). It follows that I disagree with the trial judge's view that their inclusion was unnecessary and gratuitous.

84 The trial judge's finding of malice was based largely on his analysis of the evidence of what happened at the meeting. It turned on his preference for the respondent's version to that of the appellant. He undertook no analysis of, and made no finding as to, the evidence as to the belief of the appellant in the truth of statements concerning the respondent's conduct during the telephone conversation. This he was obliged to do. In my opinion, the trial judge's failure to deal with this evidence, coupled with the erroneous finding that the inclusion of the defamatory statements was unnecessary requires that the finding that the appellant published the letter with an improper motive should be set aside.

85 Accordingly, in my opinion, the trial judge erred in holding that the defence of qualified privilege failed.

Conclusion

86 In my opinion:

(1) The defence of qualified privilege in respect of publication to the Committee should be upheld;

(2) The defences of qualified privilege in respect of the publications to the news desk of "The Sydney Morning Herald" and to Sarah Curnow from Four Corners were not established;

(3) The defences of comment and honest opinion were not established;

(4) The defence of truth of imputations (a) and (c) was not decided. It remains open in respect of the publications to "The Sydney Morning Herald" and to Sarah Curnow from Four Corners.

87 These conclusions necessitate the setting aside of the award of damages. The respondent's claim for damages will depend on whether or not the appellant establishes the defence of truth to imputations (a) and (c) in respect of the publications to "The Sydney Morning Herald" and to Four Corners. There should be a new trial limited to these issues.

Orders

88

(1) Grant leave to appeal.

(2) Direct the appellant to file the notice of appeal in the form of the draft in the White Book within seven days of judgment.

(3) Appeal allowed in part.

(4) Orders (1) and (2) made by Colefax DCJ on 9 May 2011 be set aside.

(5) Remit the matter to the District Court for the determination of:

(i) the defence of truth to the imputations pleaded in (a) and (c) in the statement of claim; and

(ii) in the event the defendant fails to establish the defence of truth to the imputations pleaded in (a) and (c) of the amended statement of claim, the assessment of damages.

(6) Costs of the remitted hearing to be in the discretion of the trial judge.

(7) Each party to bear his and her own costs of the appeal.

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Decision last updated: 01 August 2012