Bashford v Information Australia (Newsletters) Pty Ltd

[2003] HCATrans 634

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S393 of 2002

B e t w e e n -

REX BASHFORD

Appellant

and

INFORMATION AUSTRALIA (NEWSLETTERS) PTY LIMITED

Respondent

GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 3 APRIL 2003, AT 10.17 AM

(Continued from 2/4/03)

Copyright in the High Court of Australia

GLEESON CJ:   Yes, Mr Reynolds.

MR REYNOLDS:   Thank you, your Honour.  At the conclusion of the hearing yesterday, your Honour the Chief Justice asked me a question which focused on the reason why the defence of fair and accurate report is lost if the report is inaccurate.  Can I attempt to respond to that.  The rationale of the defence of fair and accurate report is based on the idea that anyone can go into an open court.  In theory, the courts of justice are open to all.  I say “in theory” because in practice, of course, there is a limited physical area into which people can come.  So if there is an accurate reportage, what does is that it simply extends the bounds of the courtroom out into the community and it puts the recipients of the information in the same position that they would have been in if they had been in the courtroom.  The difficulty with an inaccurate report is that the recipients of information are not in the same position that they would have been in if they had been in the courtroom.

Your Honours, I want to devote the remainder of my time today to an examination of the question of qualified privilege which arises here.  What I propose to do essentially is two things:  first of all, to identify, I hope with some precision, the information which I submit is the subject of the occasion of qualified privilege here.  Secondly, I want to focus on seven circumstances which I submit establish both a duty to communicate that information and also an interest on the part of the recipients to receive it.  I submit that in focusing upon those circumstances I am doing what Justice Dixon said the Court needs to do in that passage that is quote by Justice Brennan in Stephens at page 240.  I will not go back to that.  That is the template, if you like, for my submission.

Can I proceed then to try and identify the information which was the subject of the occasion of qualified privilege, and I submit it is this, that copyright safety‑related material may be disseminated within the workplace without breaching copyright if that dissemination is for safety‑related purposes.  I will repeat that, that copyright safety‑related material may be disseminated within the workplace without breaching copyright if that dissemination is for safety‑related purposes.

Now, could I focus then on seven circumstances which I submit are relevant to generating both the duty to publish here and also the interest to receive.  The first couple of these are matters that I dealt with yesterday so I shall move over them fairly quickly.

The first I will describe as the nature or the identity of the recipients, and I gave your Honours some references yesterday which amount to a finding that all – I underline that word – all of the recipients here were persons who were responsible for occupational health and safety within their organisations.  I will just repeat those references briefly.  They are in the appeal book at page 331 line 32, 330 at line 10, 323 at line 45 and 332 at line 15.  That last one is in the context of Justice Hodgson’s holding in relation to qualified privilege.  That is the first matter.

The second matter – and again I dealt with this yesterday so I will move over it fairly quickly – is what I shall describe as the duties of the recipients.  As I have said, they are responsible for occupational health and safety within their organisation and that holding I submit incorporates necessarily that they have certain duties which obviously relate to the provision of a safe system of work which will involve, I submit, very obviously the distribution of safety‑related material within the workplace and also the acquisition of information which is necessary for the recipients to be able to perform their duties.

I also submit that there is a very high public interest - and this was recognised by both Justice Hodgson in this case and by Justice Merkel in the copyright case - in these duties being performed and being performed on the basis of the best possible information.

GUMMOW J:   Is that No 3?

MR REYNOLDS:   That is No 2, your Honour.

GUMMOW J:   So the public interest is part of 2?

MR REYNOLDS:   Part of 2 but it could, as your Honour implies, be put in as an additional factor.

The third matter is what I will call the direct and immediate nature of the interest of all of the recipients in the information.  This is really a corollary of the second point but it is simply this, that this particular information was of vital importance to all of the recipients because, as I said yesterday, it goes right to the core area of their responsibilities, namely the provision of and dissemination of safety-related material within the workplace.  Their interest on any view, the interest of all of the recipients on any view, is direct and immediate.

The fourth factor that I want to emphasise is the nature of the information and that it is what I will call safety information.  That label, I submit, is most important and I will come back to that.  It is safety related both as a general matter and more specifically it relates to safety within the workplace.  My proposition here is that safety information in general and specifically safety information related to the workplace is particularly apt to generate a duty to communicate and an interest to receive.  May I add that that is particularly so where the publisher has and professes to have special knowledge or expertise in respect of the relevant safety information.

Now, this was an issue which is dealt with in very specific terms in an unreported decision of the Federal Court of Australia called Bowin Designs Pty Ltd v Joyce.  Apparently, your Honours only have limited portions of that judgment and so we have had the whole of the judgment photocopied and I hand up the relevant number of copies of that. 

GLEESON CJ:   Thank you. 

MR REYNOLDS:   I will just give the reference:  [1996] 1070 FCA 1, an unreported decision of Justice Lindgren on 6 December 1996.  What I would like to do is to go fairly quickly through this case and come to the key passages, but I respectfully commend it to your Honours as a very careful, considered and scholarly examination of the issue of qualified privilege in relation to safety‑related material.  I will just emphasise certain key passages.  Using the numbering at the top right‑hand page, if I go to page 3, your Honours will see the first portion of the introduction says that: 

The first and second applicants (“Bowin” and “Mr Joyce” respectively) –

that is, the company and Mr Joyce – again, your Honour Justice Kirby will have noticed the use of “Bowin” there instead of “Bowin Designs Pty Ltd” –

seek to recover damages from the respondent (“ACA”) arising out of the publication of an article –

in Choice magazine.  The article related to gas heaters, in particular to a portable gas heater which is designated there, manufactured by Bowin. 

If I can take your Honours then to page 25 at about point 3, it is noted that the relevant issue of Choice magazine which contained the article was delivered for mailing to subscribers and other persons, so publication here went beyond subscribers.  I will go into the detail of that in a moment.

If I can come then to the relevant passages about qualified privilege, they are from pages 36 through to 39, and it is noted at page 36 point 3 that ACA:

“… is a body expressly devoted to investigating matters related to the interests and protection of consumers, and to making available the information gained as a result of its investigations.

At page 37 at about point 8, the paragraph beginning:

In sum, ACA was correct in its assumption that there were in use in consumer’s homes a substantial number of heaters which posed a fire danger;  knew that no‑one else had taken steps to warn . . . knew that the identity and addresses of the owners . . . were unknown.

In the next paragraph that:

The considerations – 

again Justice Lindgren focusing on all the circumstances – 

The considerations to which I have referred show that ACA had moral and social duties to alert the owners of MS12 heaters . . . of the defect.

Over the page there is reference at the top – this is 38 – to 140,403 subscribers:

There were approximately 150 persons and bodies on the “free” list of which approximately 50 were individuals.

In the following paragraph there is reference to the fact that the:

Media do not have . . . qualified privilege . . . on matters of general public interest.

Justice Lindgren narrows his focus here to publications of warnings against danger of injury or death, and he refers to an English case there of Blackshaw v Lord.  He says at about point 3 that:

In my opinion, the circumstances of the present case are “exceptional” – 

and I interpolate, as they are here – 

more is established here than that the subject matter of the article is something in which the public is interested . . . and the public’s interest is “of so tangible a nature that for the common convenience and welfare of society it is expedient to protect it.”

There is then a reference to your Honour Justice McHugh’s judgment in the Stephens’ Case and no doubt what Justice Lindgren was focusing on is about four lines down your Honour referred to a:

scientist who discovers that lack of governmental action is threatening the environment –

so that raises a safety sort of issue as well.  Justice Lindgren concludes at about point 8 in the paragraph:

In my view, because the use of gas heaters is so widespread and undiscriminating, members of the public generally had an interest in being warned of the defect and of the fire danger present . . . That interest was personal and private to each member of the public, although shared by all.

Obviously not all of the recipients would have had this particular heater.

The warning could be given effectively only by notification to the general public.

There is then reference to a decision in Canada called Camporese v Parton and he continues over the page, page 39, and concludes at about point 3:

In my view, ACA published the matter complained of on an occasion of qualified privilege.

KIRBY J:   Was this decision appealed to the Full Court, or not?

MR REYNOLDS:   I have to say I have not checked that, although I think that check may have been made.  I am not certain about that, your Honour, but my belief is that it did not go on appeal.  I submit that it is an important case.  It is obviously a far more difficult case to establish qualified privilege than this one, because of the huge numbers of the subscribers, but it does underline the proposition that I am trying to advance, which is that safety information is particularly apt to generate a duty to communicate.  The next and fifth matter that I want to talk about is that the bulletins which are the subject of the ‑ ‑ ‑

McHUGH J:   You see, your argument keeps emphasising non‑defamatory material and talking about an occasion of qualified privilege in respect of non‑defamatory material and then you say, “We can link the defamatory material with this non-defamatory occasion.”  Now can you point to any case where it has ever been held that that is a proper approach?

MR REYNOLDS:   Your Honour, I can point to many, many cases.  They are, in essence, all of the cases that deal with the topic of what I will call relevance and they are dealt with or referred to in the Court of Appeal’s judgment.  These are only the main ones that the Court of Appeal has summarised.  If your Honours start at page 322 of the appeal book, Justice Sheller refers to Adam v Ward ‑ ‑ ‑

McHUGH J:   Yes, but you see Adam v Ward is a very distinct type of case.  Adam v Ward has nothing to do with reciprocity, notwithstanding that a reference was made in Lord Atkinson’s speech to reciprocity.  It fell into another head of qualified privilege, namely protection of your interest, a statement in defence, in attack, like Loveday v Sun Newspapers.  Now, Sir Frederick Jordan was at pains to point out these distinctions in judgments in the New South Wales Court of Appeal in the 1940s and the lesson seems to have been ignored.  Toogood v Spyring was not a case where reciprocity was required.  There was a view in some English cases at one stage that Toogood v Spyring had been overruled by Adams v Ward.

MR REYNOLDS:   Your Honour, all of these cases – and I will go through them and I will list them and, if your Honour would like, I will give your Honour an extensive list after the hearing – but all these cases on this question of relevance say that you need to find the relevant information which is the subject of the occasion and if there is a duty and interest in relation to that information, then there is an occasion of qualified privilege and it is a question of what other information in the matter complained of comes within that defence.  The cases say that if that information, that other information, is relevant to the occasion, then that information will also be protected ‑ ‑ ‑

McHUGH J:   But it cannot be right in principle.  You do not need any defence of qualified privilege in respect of non‑defamatory matter.

MR REYNOLDS:   Your Honour, the occasion and the defence - and this is the whole point of the cases - covers both defamatory and non‑defamatory matter willy‑nilly because it is all part of the occasion.

McHUGH J:   But you have to identify the communication.  It cannot be better put, I do not think, than was put by Sir Frederick Jordan in Andreyevic’s Case 47 SR 362.  The relevant passage is where he says, after referring to what Justice Evatt had said in Bedford’s Case:

All the circumstances . . . must be taken into account, and, in the light of them, it must be determined whether it is in the interest of the community, that is, the good of society in general, that the statement, though defamatory, should be made with impunity.  It is of course not necessary that the facts of the particular communication should be of interest to the public at large.  It is necessary only that it should be for the general good of the community that such a communication should be made with impunity so far as the law of defamation is concerned.

MR REYNOLDS:   Your Honour, in my respectful submission, that passage is not inconsistent with the proposition that I am advancing, which is that if ‑ ‑ ‑

McHUGH J:   But you have to go so far as to say that it is for the general good of the community that any communication concerning safety of information can be made with impunity so far as the law of defamation is concerned.

MR REYNOLDS:   Your Honour, my submission is ‑ ‑ ‑

McHUGH J:   This decision is a charter for defamation.  Barron’s must be following this case with great interest because if your argument is right, it seems to me Barron’s have a powerful argument in Mr Gutnick’s case that publication about him was the subject of qualified privilege.

MR REYNOLDS:   Or, to take up what your Honour the Chief Justice mentioned yesterday, I guess your Honour Justice McHugh would put this to me, or in relation to all the articles in CCH Tax Week.  That is the effect your Honour is putting to me of the particular decision in this case in the Court of Appeal.

McHUGH J:   That is really what it comes to, is it not?

MR REYNOLDS:   That is what it comes to precisely.

McHUGH J:   Yes.

MR REYNOLDS:   I submit that we succeed without too much difficulty at all in this case because when your Honours look at the seven circumstances that I am pointing to, your Honours will see that the principle for which this case will be authority is a very, very narrow one indeed and certainly could not be availed of ‑ ‑ ‑

McHUGH J:   But does it not come to this, that where people are subscribers to a specialist magazine which provides information in which they have an interest in the sense which you contend for, then you can make defamatory statements in relation to that subject matter with impunity unless you use the publication for an improper motive?

MR REYNOLDS:   Absolutely not.  I submit that when your Honour looks eventually at these seven circumstances as they are outlined, your Honour will see that there are several differences between the paradigm your Honour advances to me and the present case.

KIRBY J:   You have only got up to four.

MR REYNOLDS:   Your Honour, I am trying to go ‑ ‑ ‑

GUMMOW J:   That is No 5.

MR REYNOLDS:   If some of your Honours cannot wait to hear the list I could ‑ ‑ ‑

KIRBY J:   No, we are tantalised.

MR REYNOLDS:   Would your Honours like the full list now?

GUMMOW J:   Yes.

McHUGH J:   Yes.

GUMMOW J:   Let us get on with it.

MR REYNOLDS: No 5 is that the bulletin, the subject of the subscription, is itself copyright safety-related material. No 6 is the nature of the particular contract of subscription - I will come back to that obviously – and No 7 is the nature of the marketing campaign which, as Ms McColl very properly conceded, is relevant to the existence of a duty and interest. So I am up to ‑ ‑ ‑

GUMMOW J:   What marketing campaign?

MR REYNOLDS:   I will come to it in due course but there is evidence as to a flyer that was put out and disseminated and also that there was a direct marketing campaign which was to the same effect but I will come ‑ ‑ ‑

HAYNE J:   Marketing the bulletin.

MR REYNOLDS:   Quite

GUMMOW J:   Yes.

KIRBY J:   Barron’s, after all, is not a small subscription journal.  It is sold on the newsstands.  It is sold in many countries.  It is on the web and it is a very different horse than this one.

MR REYNOLDS:   Quite.  That is one of the differences between the case here and ‑ ‑ ‑

McHUGH J:   So far as the Australian publication, it is sold by subscription directly to subscribers, is it not?  That is the evidence.

KIRBY J:   No, there was evidence that there were a few copies sold on the newsstands.

MR REYNOLDS:   Qua publication of Barron’s within Australia I may not have that difference and I will have to rely on half a dozen others.  But, if I may say so, with respect, your Honour Justice McHugh is, I submitting, focusing on the issue which your Honours need to determine but this case just is not authority for such a broad proposition as your Honour articulates to me and come what may I am going to be running back to each of these particular circumstances to show that this publication was special, it was exceptional and indeed it was unique.

KIRBY J:   Yes, but we have to formulate a principle which will help judges to draw lines somewhere between Barron’s and this little bulletin, in your submission, is a line.  Now, what is the principle?

MR REYNOLDS:   On the question of principle – that is why I referred your Honours to the statements that Sir Owen Dixon has made in this area.  If your Honours will not think me impertinent for saying so, that very great judge was well able to formulate principles which could be deduced from the cases and then apply them inductively to the situation before him.  But when your Honours look at how Justice Dixon approached this issue, he basically threw up his hands, in a sense, at the difficulty of formulating broad principles which are capable of a priori application to every case.

That is why his Honour emphasised again and again in Guise v Kouvelis, in Moulds v Fergusson, in other cases, the importance of focusing on the particular circumstances of the case to determine whether, in the light of all of those circumstances, a duty or interest arose, because I submit if your Honours are looking at formulating a very precise principle to deal with this case, indeed, to deal with this area generally, that if what Sir Owen said is of any acuity your Honours are going to have great difficulty with that task.

One can, of course, retreat at every stage to the formulation of tests of duty, of interest and common convenience, but at the end of the day, as your Honours have put to me, there are questions essentially of judgment for your Honours as to whether or not, in all the circumstances ‑ ‑ ‑

McHUGH J:   Is there any case except Moulds v Fergusson where Sir Owen Dixon ever upheld a claim of privilege?

MR REYNOLDS:   Now, your Honour is asking me.  I am afraid I am not too good on recalling the results of all of these cases and I would really need to chase that up afterwards if your Honour is particularly interested, but all I can rely upon here is that his observations that judges in the position that your Honours are in in this case are going to find it very difficult to formulate some a priori formula which is capable of universal application to every case.

McHUGH J:   But why can you not approach this case from an economic analysis of the law point of view?  You are selling these magazines for profit and no doubt there is built into your price the contingency that you may have to pay some damages, either through insurance or otherwise.  Why in those circumstances should not the subscribers through price pay for the cost of defaming?  At least it would put some pressure on publishers of these magazines to take real care in whether or not they publish defamatory material, but why should they get off scot‑free for defaming somebody and the injured party has to wear the loss and the people who benefit from the information in general do not pay for it, for the defamation of individuals?

MR REYNOLDS:   Because in all the circumstances there is a duty here to communicate and an interest on the part of the recipients and it matters nought, in my submission, that my client happens to make some money out of this enterprise.  Most information, or a great deal of it, in the community is disseminated as a result of the incentives, the commercial incentives, which publishers have and your Honours in other cases ‑ ‑ ‑

McHUGH J:   What is more, the verdicts are tax deductible.

MR REYNOLDS:   Your Honour, this formulation your Honour puts to me is starting to give very large wings to the notion of common convenience and welfare if your Honours are to conduct what amounts to an economic ‑ ‑ ‑

McHUGH J:   Loss spreading.

MR REYNOLDS:   Perhaps, your Honour, but there is also, I submit ‑ and I will come to this perhaps a little later on ‑ one of the difficulties in this area is that in Macintosh v Dun their Honours seem to underscore the notion that somehow because the publisher is engaged in an enterprise of profit, that that means that all possibility of qualified privilege goes out the window, but I submit that that is perhaps a better insight into 19^th century English views about gentlemen who are engaged in trade than anything else.

This Court has recognised in cases, and in particular in the decision in Lange v ABC and its predecessors, Stephens and Theophanous, that commercial enterprises who are engaged ‑ ‑ ‑

McHUGH J:   But you are in a different area there; you are in the area of information concerning government and politics completely, where freedom of speech is of the greatest importance.

MR REYNOLDS:   Your Honour, the fact that my client is engaged in a commercial enterprise, I submit, is ‑ ‑ ‑

McHUGH J:   Is there any evidence that your client has any special expertise other than a journalist who gathers material from other people?

MR REYNOLDS:   Will your Honour, I am sorry, permit me just to finish that?

McHUGH J:   Yes.

MR REYNOLDS:   I wanted to say simply this, that the fact that my client is engaged in a commercial enterprise is not a disentitling circumstance.  That is the proposition I am trying to advance and I apologise to your Honour for finishing my sentence before answering your Honour’s question.

McHUGH J:   Perhaps I should apologise to you for interrupting.

MR REYNOLDS:   At any rate, your Honour is asking me whether there is any evidence that my clients have any form of particular expertise in this area.  Can I answer that in two ways, having first said yes.  The evidence is that in the bulletin itself which shows, if I may respectfully say so ‑ ‑ ‑

KIRBY J:   You have cornered a market, you have a special niche, you are concentrating in a particular area. 

MR REYNOLDS:   Yes, and this is expertise which is manifest in the bulletin itself.  May I add that there is a further exhibit in these proceedings, which your Honours do not have in the appeal book, which is exhibit 5, and I will hand it up if necessary in due course, which contains a whole lot of other bulletins which were put into evidence and those other bulletins both individually and collectively evidence expertise on the part of my client in this area. 

The second thing that I would like to say in response to your Honour Justice McHugh’s question is that – and I will be coming to this in a moment – there are, in the advertising material, professions of expertise, and I am going to be submitting in due course that that is a relevant circumstance giving rise to a duty to publish.  If I can continue on though with point 5, which ‑ ‑ ‑

KIRBY J:   Is that suggested expertise one of your seven, or do we get to an eighth? 

MR REYNOLDS:   Your Honour, it is a subsidiary point made under heading 7, because when your Honours go to the marketing campaign your Honours will see two things:  first of all, claims of expertise on the part of the publisher – that is, special knowledge in relation to occupational health and safety - secondly, an assertion or assertions that the recipients may rely upon the occupational health and safety information provided. 

HEYDON J:   But you mentioned it as part of point 4 as well.  You said particularly when a publisher has, and professes to have, special expertise. 

MR REYNOLDS:   I did indeed.  If I can continue on then with this fifth point, if your Honours go to the matter complained of and in particular to page 247 of the appeal books, your Honours by flicking through the bulletin will see from pages 240 to 247 that it is not difficult to designate this bulletin as “safety‑related material”.  Second of all, your Honours perhaps will not have seen that at the very bottom of page 247 in the fine print there is a statement that: 

This publication is copyright and may not be resold or reproduced in any manner –

except for study purposes –

without the prior consent of the Publisher. 

So there is not only copyright in this material but an express claim for copyright.  I might add that in all of the bulletins in exhibit 5 that statement occurs at the end of the bulletin. 

GLEESON CJ:   Mr Reynolds, it appears from page 245 line 12, in the right-hand column, which is the heading to the relevant part of the matter, the bulletin, that the entire matter in question was by way of a law report, was it not?  It is a heading.  The heading is “MSDS copyright case dismissed” and everything relevant to the present case follows under that heading.  It is a case note. 

MR REYNOLDS:   Not entirely, your Honour. 

McHUGH J:   Well, the last three lines tell you to contact the Federal Court on 246 and “Copies of the judgement are available on the Internet”. 

MR REYNOLDS:   There is also, at page 246, the first column, at about line 34 following into the second column, some commentary from the Associate Professor of the University of New South Wales about all this.

GLEESON CJ:   We have tended, naturally, to focus attention on what appears on page 246 in the right‑hand column, but if you put that in its entire context, what the publisher is doing is informing the readers of a certain piece of litigation and making comments – no doubt for their interest – on various aspects of that litigation.

MR REYNOLDS:   Yes, that is true, your Honour.

GUMMOW J:   But the first sentence under the heading indicates why these subscribers would be interested.  In other words, these health and safety people now know, thanks to the Federal Court, that they can use these data sheets without fear of copyright.

MR REYNOLDS:   I submit that the ratio goes wider than that because, as Professor Winder says, we are talking here not only about MSDS’s but also about any material that is safety related.  That is the ratio that ‑ ‑ ‑

HAYNE J:   Which makes your client’s copyright claim rather ironic, does it not?

MR REYNOLDS:   In a way, your Honour.  I am eager to follow through on what your Honour the Chief Justice has raised with me, if there is something concerning your Honour, but I do not want to pursue it unnecessarily, but another way of responding to what I think is implicit in your Honour’s question is to say this, that your Honour envisages what I might call a form of characterisation exercise and that if the matter complained of can be characterised as a court report, then certain consequences follow from that.  The difficulty with that is that when one is talking about information, multiple characterisations are always possible.  That is why I gave an example yesterday of a publication which could be characterised either as (a) a reply to an attack or (b) a court report, or in the second example I gave, it could be characterised as submissions to a domestic tribunal by counsel or (b) as a report of court proceedings, or to use the example Justice Hodgson said, it could be classified as either an employment reference or a court report.

Now, the effect of Ms McColl’s submissions on her first point is, if it can be characterised as a court report, every other form of characterisation is utterly irrelevant.  I think that may have been ‑ ‑ ‑

GLEESON CJ:   The point you make does address a concern that I had but another aspect of a concern that I had is this – and you may want to make a comment on it – it concerns this issue of relevance.  To ask whether or not the information that this contains about the outcome of the litigation so far as Mr Bashford or Mr Bashford’s company was concerned was relevant is, in one sense, to ask a very curious question, because the entire publication in its relevant part was about the litigation to which Mr Bashford or his company was a party.  So it is not as though they have, as it were, gratuitously thrown in a bit of information or misinformation about the outcome of a particular court case in the context of a more general discussion of copyright in relation to OHS information, the entire discussion is about the court case.

MR REYNOLDS:   And about one central proposition in it, which is the item of information which I have sought to identify, and around that, everything else is, if I can put it this way, slotted in, because that is what these recipients are interested in, is ‑ ‑ ‑

GUMMOW J:   One of the things they are interested in knowing is that it is quite wrong if there had been an earlier successful prosecution of the copyright infringement.  If it has been false and misleading, this gentleman whose name starts with B could go around saying that.

MR REYNOLDS:   Quite.  I mean, I am expressing, eager as I am to hug the circumstances narrowly, but, as your Honour Justice Gummow points out to me, I may be being overly conservative and cautious in the way I am formulating my argument, and that is, of course, to attempt to make it more resistant to attack.

GUMMOW J:   The fact is that out there in the commercial world there is a lot of loose talk about copyright infringement.  If one has practised in this field, one knows that.  Lay people have all sorts of weird ideas about it and all sorts of beat-ups go on and this defuses a beat-up.

MR REYNOLDS:   It sure does.

CALLINAN J:   Mr Reynolds, I am still a little troubled by this, that you can get protection if it is a fair and accurate report of a judicial proceeding but you can only get that protection if it is fair and accurate, yet under qualified privilege you can get protection of a court report if it is unfair or inaccurate or both.  Now, that seems to follow from section 11 - that is my tentative view anyway.  I just wonder if the fact that you can only get protection as a fair and accurate report if it is fair and accurate in some way influences the defence of qualified privilege when it relates to what is a law report.

MR REYNOLDS:   Well, this goes really to the different rationales on the defences and the Chief Justice raised with me the open-court principle, which is the rationale behind fair and accurate report and the idea is that, because it is an extension of the courtroom, one does not need any further justification to have a defence to defamation other than the fact that it is fair and accurate.  But that does not mean that all other inquiries are irrelevant on the issue of whether or not the defamation should be actionable.  The thing about qualified privilege and the law there is that judges over the centuries have said that where there is a relevant duty and/or interest, then that is a sufficient reason to mean that the defamation is not actionable.  So the fact that you just do not come within one defence does not mean that ipso facto you should not come within any other defence.  They have different policies, different elements and different rationales.

CALLINAN J:   But what is the need for a defence of fair and accurate report of court proceedings if you can defend it under qualified privilege?

KIRBY J:   Well, it gives the general media ‑ ‑ ‑

MR REYNOLDS:   The importance is, as your Honour Justice Kirby said, that the media as a result – if your Honours uphold our argument in this case, they are going to get absolutely no joy from it.

CALLINAN J:   You do not have to worry with reciprocity, I suppose?

MR REYNOLDS:   Well, we say we have that if it is needed, but ‑ ‑ ‑

KIRBY J:   You say you have it, but the general media publishing to the world at large does not have it, except maybe in the political area and outside that they do not have it and therefore they get this special protection ‑ ‑ ‑

MR REYNOLDS:   Indeed.  So, picking up a point that my learned friend made yesterday by reference to a statement of your Honour Justice McHugh in Stephens’ Case, talking about the defence of comment being made superfluous, what your Honour says to me would have force, indeed great force, if the effect of my submissions here today was that the defence of fair and accurate report would be rendered superfluous.  Where this argument is critical and where it is valid is on the question of whether there should be a defence of qualified privilege for “discussion of matters of public interest”, because if that is the formulation, that would utterly subsume the defence of fair and accurate report, because it will always be easier to establish discussion of public interest than to establish fair and accurate report.

So if we were here today arguing about that proposition, I would have to agree with your Honour if I was advancing that defence, for example, on behalf of a media proprietor.  Your Honour would have torpedoed me well below the waterline, because the effect of the defence of the discussion of public interest would be that the defence of fair and accurate report becomes superfluous, the defence of qualified privilege on duty and interest becomes superfluous and the defence of fair comment becomes superfluous, but, your Honours, that is not this case.  This is a case, I am trying to submit, which depends upon narrow unique circumstances and where in the particular circumstances there is a duty and interest.  I do not seek to formulate here today any broad proposition which the media generally would be able to take advantage of.

CALLINAN J:   You are emphasising the reciprocity of the particular interest of the subscribers and not a public interest.

MR REYNOLDS:   Not at all.

KIRBY J:   Yes, but there still is a little potential problem in your argument, that if you have, say, the Bar News or a Law Society journal you are in effect saying because there is this reciprocity of interest you get a free kick in a particular audience which is extremely important to your reputation, namely the world in which you happen to operate, economically, socially, individually.

HAYNE J:   That is always the case when a character reference is given for a prospective employee.  Few things could be of more acute importance to that employee than the reference be wholly accurate but qualified privilege cuts in when he is not.

MR REYNOLDS:   Quite.  I mean what your Honour Justice Kirby is putting to me is, I respectfully suggest, really a variation of your Honour the Chief Justice’s example about CCH Tax Week and Justice McHugh about Barron’s but again ‑ ‑ ‑

KIRBY J:   I can empathise more with the Bar News than with the CCH Tax record.

MR REYNOLDS:   But at any rate, your Honour, what my learned friend, Ms McColl, had to do was really to show your Honours that the Court of Appeal had bitten off a form of qualified privilege which was way too large a proposition.  What I am submitting is when you look at the circumstances it is a very narrow proposition.

KIRBY J:   Yes, but you just want to tie this down to your case, which is your role.  You want to argue that way and it is an entirely understandable and proper.  But we have to look at this case and what signal it sends for all of the little journals, starting with Bar News with 3,000 subscribers, getting up to the New South Wales Law Society Journal with 10,000 subscribers and gradually edging up to quite a large subscription where, within the circle, the individual’s reputation on this thesis is at risk – free kick.

MR REYNOLDS:   Your Honour, what I submit your Honours have to do in this case, if I may say so without impertinence, is to decide this particular case.

KIRBY J:   Yes, but that is not our role, Mr Reynolds.  We have to decide this case in the context of its implications for other like cases.

MR REYNOLDS:   Your Honours need to take ‑ ‑ ‑

KIRBY J:   It depends on your attitude.  Some people, and the common law’s tradition has been just solve the case, but at least as far as I am concerned you cannot solve the case without having a concept of how your solution works in other analogous and slightly different circumstances.  You have to get your concept right.

MR REYNOLDS:   What Sir Owen said, and I know I keep coming back it ‑ ‑ ‑

GUMMOW J:   He was lamenting one of the defects of the common law system.

MR REYNOLDS:   Indeed.

GUMMOW J:   And he was right, and the law of negligence is the most daily encountered example, but we are stuck with it.

MR REYNOLDS:   Your Honours cannot cure every ill.  Your Honours cannot write judgments that are going to deal with every situation.  What your Honours can do is look at the basic principles, look at the particular circumstances of this case and if there is any concern about the use to which the particular case might be put, for example in the media area, your Honours can note, as judges frequently do, that the case is very much authority only for its particular circumstances.  Now, that is not to say, if I may respectfully say so, that your Honour Justice Kirby could not consider broader issues in the context of this case.  That is a matter that your Honour may well do.

GUMMOW J:   Your point is it is not a reason for defeating your client’s interest.

MR REYNOLDS:   Quite.  If I may continue on, then, with point 5.  I submit that the fact that these bulletins are safety related, that they are copyright and that there is a claim for copyright is itself a relevant matter on the issue of whether there was a duty to publish and whether or not the recipients had an interest and that is because the effect of a case would be to tell the recipients that apropos this bulletin they would be able to disseminate it within the workplace without being found in breach of copyright.

The sixth matter is the question of the contract of subscription.  The holding by Justice Hodgson is to be found at page 331 of the appeal book at line 47.  What his Honour says here is that:

the existence of a contract of the type that existed here does in my opinion support –

and that is the key word –

the existence of a duty of communication –

and then he adds, and this is important –

where there is truly a public interest in the communication being made.

So, there are two points, public interest, common convenience, if you like, and second of all, the existence of the contract, the particular contract here, is relevant to that, it supports the existence of a duty.  I seek to defend that proposition.  May I add that that is the only proposition which I do seek to defend.  What I assert is that there could be no dispute that the existence of a contract between the publisher and the recipient may be relevant in some circumstances to the existence of a duty and the existence of an interest.  That is all Justice Hodgson is saying there and I submit that that must be correct.

There are various matters that I would like to note briefly about this contract.  Can I do that by taking your Honours very briefly to a passage of the evidence.  One of the difficulties which I should alert your Honours to is that although that is what Justice Hodgson says, his Honour does not proceed to locate precisely what the terms of the contract are, what its constituent documents are or what communications it is based on, but there is – and this was the subject of argument as I understand it in the Court of Appeal – (a) a document and (b) some evidence which impacts very closely upon this which would have enabled his Honour to say what he did.

The evidence is to be found in the first volume of the appeal book at page 84, relevantly at lines 25 to 35, where there is reference to purchase on subscription and then he is asked – this is Mr Wilkinson who is the proprietor effectively:

Q.  How did your company go about arranging for subscribers?
A.  We would market direct to specific Occupational Health and Safety professionals there with specific responsibilities and we would do that through extremely targeted direct mail and telephone marketing. 
Q.  If I can show you a letter, a standard letter.  In terms of direct mail that is the type of marketing that was being conducted in 1997?
A.  Yes . . . Even the opening words, we are marketing to a selective group –

and these are the important words –

That’s the style of direct marketing that has been used for the life of the publication.

So, both the direct mail and the telephone marketing are conducted using the sort of information which is to be found at line 35 in the marketing letter.  Now, that is to be found in the second volume of the appeal book at pages 285 and following.  I will just focus on this because it shows what I submit are the key terms of the contract.  At page 285 at about line 25 there is a reference to an offer and again at line 34 there is a reference to an offer, the fact that it is an OHS bulletin is a matter noted at line 34 on that page.  It comes fortnightly, that is a matter referred to at line 36.  There is reference to price at about line 38, and importantly there is an order form at page 287, in the left‑hand side of the page, your Honours will notice with a different price, but again reference to there being an OHS bulletin at a particular price fortnightly. 

So what I am saying is that this, together with direct marketing over the telephone to similar effect, is the contract, if you like, so far as it is manifest in evidence.

GUMMOW J:   Is that all the one publication from 285 through to 288?

MR REYNOLDS:   Yes, your Honour, as I understand it.  The final matter though is what I will call the nature of the marketing campaign which, as my learned friend Ms McColl noted, is relevant to the existence of where there is a duty and interest.  There are two reasons that I say it is relevant, and I mentioned this before.  The first is that there were in this marketing campaign two things:  first of all, claims of expertise on the part of the publisher, that is, a claim of special knowledge in relation to occupational health and safety.  That is at its clearest at page 285 at about line 41:

latest expert advice to prevent OH&S ‘blow‑ups’ ‑ 

but, of course, the whole of this document manifests a claim for expertise in this area almost in every line.

The second relevant matter, I submit, is that this campaign, which took place from direct mail and also by telephone, contains assertions that the recipients may rely upon the OH&S information provided.  Those references - I will give them to your Honours quickly - are 285 at line 40, 286 at line 31, 286 at line 36, 287 in the middle column, and 287 in the right‑hand column.  There are several passages there asserting that the recipients may rely upon the OH&S information provided.  Your Honours, I am ‑ ‑ ‑

HAYNE J:   Can I just take you back a moment, Mr Reynolds.  You referred on a number of occasions to Justice Dixon’s statements in Guise v Kouvelis and did so by reference to the passage extracted in Stephens, but the full passage at pages 116 and following of 74 CLR is a rather fuller description of his Honour’s difficulties.  I do not suggest we spend time on it now, but the passage perhaps benefits from being read in a rather broader context of his Honour’s remarks.

GUMMOW J:   It is pretty fundamental.

MR REYNOLDS:   With respect, I agree.  We focused upon this passage only after the list of authorities had been filed and we therefore relied upon ‑ ‑ ‑

HAYNE J:   We do not need to stay to spend time on it. 

GUMMOW J:   At the moment. 

MR REYNOLDS:   Your Honours, the only other matter that I wanted to remind your Honours about before I finish my submissions is that, as my friend candidly conceded, all the four judges below found that there was an occasion of qualified privilege.  The only other two matters that I want to raise with your Honours is that my learned junior has informed me that there was no appeal from the decision of Justice Lindgren. 

The only other matter that I want to deal with just very briefly is that your Honour Justice McHugh raised with me a matter yesterday, where I was talking about the reply to attack.  I submitted that if a third party was caught up in the reply to the attack – that is, that part of the reply to the

attack referred to a third party – that if the attack on the third party was relevant to the attack, then it would be an occasion of qualified privilege, and your Honour put to me that that was an extraordinary proposition.  Can I just give your Honours a couple of references on that.  We have not researched it ‑ ‑ ‑

McHUGH J:   Yes, well, I was wrong on that. 

MR REYNOLDS:   If your Honour pleases, those are my submissions. 

GLEESON CJ:   Thank you, Mr Reynolds.  Yes, Ms McColl. 

MS McCOLL:   Just in relation to that penultimate point of my friend’s, can I say that, in terms of the court below, in the appellant’s favour is the Court of Appeal did not dissent or disagree in any way from his Honour Acting Justice Davies’ proposition that there was no interest in the recipients of this newsletter to receive that portion of the matter complained of which defamed the appellant. 

Can I go to the question your Honour the Chief Justice posed yesterday evening concerning, in effect, the policy inherent in the defence of fair and accurate report and why that is a requirement of the defence.  Without going to the decision to which I took the Court yesterday morning in Wason v Walter, can I commend the close reading of that decision to your Honours and, in particular, what his Honour the Chief Justice there said, that publication of reports of proceedings to provide information to the public was for the benefit of society and advantaged the community in the sense that my learned friend has already said this morning, in terms of giving them the opportunity to be in as good a position as if they had been within the courtroom. 

But, importantly, his Honour the Chief Justice also pointed out that, in effect, the danger to an individual’s reputation which might flow from the publication of what took place within the courtroom was balanced by the fact that the judges had control of the proceedings and could ensure – no doubt his Honour intended to say, by the application of the rules of evidence with as much fairness as the judges could do – that the proceedings of the court were controlled.  So, in other words, a fair and accurate report of proceedings which had been subject to judicial control minimised, in his Honour’s view, the potential danger to an individual’s reputation. 

The effect of my learned friend’s argument is that you transfer the control, which his Honour referred to, of the proceedings and the control which was translated into the requirement of a fair and accurate report to the hands of the publisher so that the courts lose control of ensuring that their proceedings are published in a fair and accurate manner.

Can I give the court just a page reference in the American materials which we referred to yesterday?  At page 33 in American Jurisprudence there are three rationales advanced for the defence of fair and accurate report, too, and I do not wish to take up the Court’s time by taking you to it but just to refer to the fact that it is there.

The proposition which I have just been advancing I should also remind your Honours in relation to the publication of accurate reports is reflected in the observations of Justices Gaudron and Gummow in Chakravarti, for example, that it is simply not in the public interest to publish a report that is unfair and that picks up that proposition in Wason v Walter.

Your Honours, my learned friend said many times yesterday that our case was just about a single inaccuracy.  The point to be made in response to that is that it is an inaccuracy of sufficient magnitude to cause a defence of fair protected report to fail.  In relation to the seven points which my learned friend has advanced this morning, all of those, it might be noted, relate only to the publication of material relating to the material of safety data sheets and not at all to the information concerning the appellant.

HAYNE J:   You seek to draw a sharp distinction between a finding of liability and the subject matter of that finding of liability.

MS McCOLL:   I seek to make the point, your Honour, this morning my learned friend identified the information which was the subject of the occasion of qualified privilege and taking the best note I could of what he said was, “The copyright safety‑related material could be published to the workplace or could be used in a workplace without breach of copyright if it was for safety‑related purposes”.  That is the information he said attracted qualified privilege.  He did not seek to defend the matter on the basis or advance a proposition in relation to his seven points in relation to the particular finding in relation to the appellant.  That is as I understood the argument he was advancing this morning.

HAYNE J:   I do not follow the tailpiece of that proposition you have just put.

MS McCOLL:   Because the point is this, the occasion of qualified privilege will not attach to material which is entirely extraneous to the information which might be the subject of the occasion, as he has put it - as Justice McHugh put it.  The occasion of qualified privilege arises in relation to the defamatory material, not the non‑defamatory material, as I sought to explain yesterday.  Accepting that Lord Finlay’s formulation of the test in Adam v Ward is correct, the occasion of qualified privilege does not arise in relation to such material as did not ‑ ‑ ‑

McHUGH J:   But that necessarily follows from the theory that the defamation created a presumption of malice and the privilege then destroyed that malice.  So you have to have a defamatory statement before you get into the area of qualified privilege.  Lord Dunedin made that very clear, I thought, in Adam v Ward.

HAYNE J:   This article conveyed the imputation that the plaintiff Mr Bashford, as distinct from his company, had been found liable to ACOHS in damages and costs for publishing a false report.  Correct?

MS McCOLL:   Yes, your Honour.  That is what the jury found.

HAYNE J:   The report in question was a report that Bialkower had successfully prosecuted ACOHS for MSDS copyright infringement, is that right?

MS McCOLL:   As I understand it, your Honour.

HAYNE J:   And the contention against you, as I understand it, is that those who published the bulletin and those who received it had a mutual interest in knowing whether MSDS and perhaps other copyright safety information could be distributed without breach of copyright.

MS McCOLL:   That was the matter which was decided in the cross‑claim.  In relation to the ‑ ‑ ‑

GUMMOW J:   Not just in the cross-claim.

MS McCOLL:   But insofar as the material safety data sheets was concerned, that was the subject of the cross-claim.  It only arose in relation to the cross-claim, your Honour.

GUMMOW J:   I do not think that is right.  That is what the section 52…..is all about too.

MS McCOLL:   Very remotely, we would submit, your Honour.  In relation to ‑ ‑ ‑

GUMMOW J:   All this has a relation to saying there has been a false action for threats, if you like.

MS McCOLL:   That seems to have been ‑ ‑ ‑

GUMMOW J:   People out there can be confident that there is nothing in this.

MS McCOLL:   In relation to a point which my learned friend made yesterday, I think in relation to your Honour Justice Callinan’s decision in Esso, our submission is not that the common law should adapt the legislation.  Our submission is that the legislation reflects the common law in the sense in which the defences of fair protected report and qualified privilege have been developed at common law so that they move in effect in tandem.

Your Honours, my friend has referred the Court to Bowin’s Case this morning.  Bowin’s Case, when the Court has regard to the facts, is a very singular case in which a consumer organisation conducted extensive investigations on its own and original investigations into an extremely dangerous product which had the potential to expose members of the public, as his Honour Justice Lindgren found, to death.

The evidence before the court was that there was no way even the vendor of the product, who was the applicant in the proceedings, knew where these heaters were or could he really identify whether any more of them were on the market and it was in those very exceptional circumstances, we would submit, and his Honour acknowledged it, that it was an exceptional case in the passages to which my learned friend took the Court, that qualified privilege was held to arise notwithstanding the extensive nature of the publication.

Nevertheless, it might be fairly noted, we would submit, that the nature of the relationship between the subscribers to that publication and the publisher was more in the nature of the mutual relationship which founded the duty and interest in Howe and McColough v Lees.  It was an association to which members subscribed to and their subscriptions supported the research which was undertaken.  It was certainly not the case here where subscribers were solicited by the advertisement to which the Court has just been taken with offers of bargain-basement prices for information about occupational health and safety.

Really, the final submission I wish to make was that in relation to my learned friend’s last submissions about that advertisement, that it goes a long way to say that the self-serving puffery in that advertisement could connote the sort of expertise which one might rely upon or might regard as specialist expertise which would be required and which might be of the nature of that proffered by a professional.  Nothing in the bulletin and nothing in the evidence and there was no oral evidence of the qualifications of any of the authors of any part of the bulletin, let alone the matter complained of, would justify a conclusion that it was a professional work prepared by professionals with a special expertise.

CALLINAN J:   Ms McColl, is there something in the New South Wales Evidence Act which perhaps makes that evidence of the truth, the assertions of expertise, if they are that?  I suspect there is.

MS McCOLL:   It may be if the evidence of those portions of the Evidence Act dealing with business records might possibly extend so far, but we would submit that one could also have regard to the nature of the advertisement and to characterise it, as we would submit, as puffery.

KIRBY J:   What do you say about the passage in Guise v Kouvelis in which Justice Dixon emphasised the inescapable individualisation of the facts of each case where qualified privilege is claimed and that when one looks at this particular case, the seven elements that had been cited make this a rather particular case.  We are not dealing with a larger publisher; we are dealing with a small-time specialist particular subscription journal and that that is enough to give rise to the reciprocity of interest and duty, whatever may be the problem would be presented by a larger subscription journal and a more diffuse journal, such as a Law Society journal and so on.

MS McCOLL:   Your Honour, there is no doubt that one has to look at the circumstances, but the circumstances, we submit, here do not support the proposition that this was some specialist group.  The advertisement to which the Court has been taken on two occasions now would, we submit, give more the flavour of an advertisement for a Demtel product rather than, for example, for an Australian law journal.  When one looks at the document, it is being sold to a market of people who – the evidence I took the Court to yesterday and the advertisement itself indicates you should read this document in seven minutes. 

One might take regard, for example, even to the fact that – I really do not think I need to make these sort of submissions, your Honours, but the bulletin itself is not, for example, marked in the way one would expect a law journal to be marked.  It does not have a volume reference, it does not have an issue reference, one just ‑ ‑ ‑

KIRBY J:   No, but it is not targeted at lawyers.  It is targeted at occupational health and safety ‑ ‑ ‑

MS McCOLL:   But that is the way my learned friend is seeking to advance it.  He is seeking to advance it now as if it were some sort of publication of an expert nature which can be relied upon in the way of conveying, in effect, professional advice.  It is simply not that sort of document, your Honour.  It is not sold as that sort of document.  It is offered ‑ ‑ ‑

GLEESON CJ:   It says on page 288 that it is targeted at lawyers. 

MS McCOLL:   Well, it is targeted at lawyers among others.  It is sold as ‑ ‑ ‑

HAYNE J:   This, I think, was volume 6 No 123 that we were concerned with in this.  

MS McCOLL:   It says, it is offered at cut‑rate prices, your Honour.  It is just not, as we would submit, the sort of document which one would convey in the circumstances as being sold as an expert publication.  It is really sold as a newsletter – that is the way we would advance the proposition – as can be seen from the other sort of chatty articles within it, one example being the sort of news bulletin about Transfield to which his Honour Justice McHugh referred yesterday. 

KIRBY J:   But a lot of people in the real world do get their information from readable, chatty documents.  They do not all have to be sombre and tedious, as a lot of legal material is. 

MS McCOLL:   I am not saying that they should be, your Honour.  I am just responding to your Honour’s question about the circumstances of this particular publication, to say that one should not elevate it to particularly lofty levels when one has regard to how it is advertised and the layout and the sort of material which is within it. 

HAYNE J:   It does not sit well with opening the first page of the ALJ, Ms McColl, where it says:

Expert Advantage

Minimise trade practices risk with quick and easy access to a complete source of current Australian expert commentary ‑ ‑ ‑

MS McCOLL:   I do not think one would have any doubt when one opens the Australian Law Journal that that is precisely what you get.  At least the authors of this bulletin were sufficiently honest not to profess to have that sort of expertise; indeed, they seem to be have been at pains not to identify the qualifications of the authors.

GLEESON CJ:   Ms McColl, exhibit 5 is not reproduced.  Whereabouts is it at the moment?

MS McCOLL:   It seems to be in Mr Reynolds’ hands, your Honour.

GLEESON CJ:   Could we have it, please?

MS McCOLL:   It was one of the respondent’s exhibits, I think, your Honour.

GLEESON CJ:   We will just have the officer keep it with the papers.

MR REYNOLDS:   I have placed flags on the relevant portions.

GLEESON CJ:   Thank you.

MS McCOLL:   I should just say I interrupted my learned friend yesterday and I incorrectly suggested that section 65A had been mentioned in his Honour Justice Merkel’s judgment.  It was not and I apologise for that.

GUMMOW J:   It is not there.

MS McCOLL:   May it please the Court, those are our submissions.

GLEESON CJ:   Thank you.  We will reserve our decision in this matter and we will adjourn for a short time to reconstitute in Court 2.

AT 11.38AM THE MATTER WAS ADJOURNED