Bashford v Information Australia (Newsletters) Pty Ltd

HIGH COURT OF AUSTRALIA

GLEESON CJ,
McHUGH, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ

REX BASHFORD  APPELLANT

AND

INFORMATION AUSTRALIA (NEWSLETTERS)
PTY LIMITED   RESPONDENT

Bashford v Information Australia (Newsletters) Pty Limited [2004] HCA 5

11 February 2004

S393/2002

ORDER

Appeal dismissed with costs.

On appeal from the Supreme Court of New South Wales

Representation:

R S McColl SC with M A Kumar for the appellant (instructed by Eakin McCaffery Cox)

G O'L Reynolds SC with R G McHugh and A T S Dawson for the respondent (instructed by Corrs Chambers Westgarth)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

1. GLEESON CJ, HAYNE AND HEYDON JJ.   Central to the resolution of the issues in this appeal is the proper application of principles regulating the availability of the common law defence of qualified privilege to a claim for defamation.

2. The appellant sued the respondent in the Supreme Court of New South Wales for defamation.  He alleged that the respondent had defamed him in a periodical it published called "Occupational Health and Safety Bulletin".  The relevant text of the matter which the respondent published, and which the appellant alleged defamed him, is set out in the reasons of other members of the Court.  Those reasons also describe the course of proceedings in the courts below.  We need only repeat those matters which are necessary to explain our reasons.

3. A jury found, and it is now not disputed, that the matter which the respondent published conveyed the following imputation, which was defamatory of the appellant:  that the appellant had been found by the Federal Court of Australia liable to ACOHS Pty Ltd ("ACOHS") in damages and costs for causing that company harm and loss by publishing a false report concerning it.

4. In fact, a company controlled by the appellant and his wife (R A Bashford Consulting Pty Ltd – "Consulting") had been found by the Federal Court to be liable to ACOHS.  The appellant had not been a party to those proceedings and it follows that it was wrong to say that he, as distinct from his company, had been found liable.

5. It is necessary to say something about the claim which ACOHS made against Consulting in the Federal Court. It concerned, among other things, the publication of a newsletter called "Infax". On 2 December 1993, Consulting and another company called Risk Management Concepts Pty Ltd published an item entitled "Chemwatch wins copyright case". The Federal Court found (and in its final orders declared) that in publishing this item, or causing it to be published, those companies engaged in conduct which contravened s 52 of the Trade Practices Act 1974 (Cth)[1].  The Court ordered Consulting, Risk Management Concepts Pty Ltd, and a third respondent (Mr Bialkower), to pay ACOHS $20,000 damages and to pay part of ACOHS' costs of the proceeding.  Thus, the Federal Court found Consulting (but not the appellant personally) liable to ACOHS in damages and costs…