Bashford v Information Australia (Newsletters) Pty Ltd

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 WEDNESDAY, 2 APRIL 2003, AT 10.19 AM

MS R.S. McCOLL, SC: May it please the Court, I appear with my learned friend, MS M.A. KUMAR, for the appellant. (instructed by Eakin McCaffery Cox)

MR G. O’L REYNOLDS, SC: May it please the Court, I appear for the respondent with my learned friends, MR R.G. McHUGH and MR A.T.S. DAWSON. (instructed by Corrs Chambers Westgarth)

GLEESON CJ: Yes, Ms McColl.

MS McCOLL: Your Honours, there are three issues in this appeal. The first is whether the defence of qualified privilege can ever protect an inaccurate report of judicial proceedings. The second is whether a trade journal has a qualified privilege to publish an inaccurate and defamatory report of a judgment in Federal Court proceedings, merely because part of the judgment concerns a topic in which readers of the journal might be interested. The third issue is when is material not itself privileged so relevant to the privileged material as to make the former the subject a defence of qualified privilege.

Your Honours, underlying these three issues is a common policy issue which we would submit flows from the fact that both the defence of fair protected report of judicial proceedings and the defence of qualified privilege have as their source a common basis being the common convenience and welfare of society. In determining the issues raised which I have outlined, this Court will have to consider where the balance is to be struck between the plaintiff ‑ ‑ ‑

KIRBY J: Well, that is one issue of principle. Another might be whether or not a fair and accurate report is, as it were, the whole realm or whether there is room for other defences to be available at the same time.

MS McCOLL: Yes, we would certainly adopt that, your Honour. We would say that, as I would hope our submissions make clear, in effect the defence of privilege for fair protected report covers a field, to use an expression commonly heard in this Court, or occupies the whole area, so that there is no room for the limited defence of qualified privilege or the more limited defence of qualified privilege which turns on a reciprocity of duty and interest.

If I could just return briefly to the balancing exercise which we say needs to be undertaken and which is that which is common when considering how the common convenience and welfare of society might outweigh a private individual’s interest in their reputation. We would remind the Court that that common convenience and welfare of society, in particular in the context of reports of judicial proceedings, was held to outweigh a private litigant’s interest in his or her own reputation by reason merely of the fact that they had been a participant in judicial proceedings and that the greater interest was that the public should know what happens in proceedings which take place in the open courts.

KIRBY J: It is common ground that there is no constitutional question in this case, although occupational health and safety would be a matter of legitimate and active public debate in Australia relevant to the exercise of the democratic process.

MS McCOLL: Certainly, we turned our mind to it, your Honour. We did not take the view that a section 78B notice should be served and, as I understand it, the respondent has taken the same approach.

Your Honours, this case arises in the context of the publication by the respondent of an article about Federal Court proceedings. The appellant was not a party to the Federal Court proceedings; rather his company, R.A. Bashford Consulting Pty Ltd, was. I will turn to the Federal Court proceedings shortly, but if I could take the Court first to the matter complained of, which was attached, as is the practice, to the statement of claim but might most conveniently be seen in the context of the respondent’s publication at page 240 of the second volume of the appeal books.

Your Honours will there see the respondent’s Occupational Health & Safety Bulletin as to which the evidence was it was published to approximately 900 people, and I will turn to some of that evidence shortly. The actual matter complained of commences at page 245 in the right‑hand column, under the heading “MSDS copyright case dismissed”. MSDS, your Honours, is the short version of a document called a material safety data sheet. Indeed, the first portion of this article down to the second column on page 246 deals with what was, in the Federal Court proceedings, in fact a cross‑claim brought by a Mr Bialkower against the original applicant in the Federal Court proceedings in which he sought to assert a claim of copyright in some material safety data sheets which he said were his original work.

I do not need to take the Court to the detail of the respondent’s report of the cross‑claim save to note that it did, in his Honour Justice Merkel’s opinion, when his Honour dismissed the cross‑claim and the copyright claim, his Honour did point out on page 246 in the first column at about line 15 that it would indeed:

“be contrary to the public interest for the courts to make orders preventing or impeding disclosures of the MSDS for safety‑related purposes.”

For those and other discretionary reasons, his Honour had in fact dismissed that cross‑claim. Then in the right‑hand column at about line 20, the respondent ‑ ‑ ‑

GUMMOW J: What is his Honour saying there? I am not sure I understand it.

MS McCOLL: I am sorry, your Honour?

GUMMOW J: What is Justice Merkel saying?

MS McCOLL: His Honour went through three processes, your Honour. First, he found that Mr Bialkower had established a very poor case for copyright and that he had not really got there. Then his Honour said, in any event, there was in effect an implied licence in relation to these material safety data sheets because they were published and communicated by Mr Bialkower in circumstances where they should be used and should be available to be used by recipients. Thirdly, his Honour appears to have said in the passage to which I have just referred the Court that the public interest in knowing about the danger of the chemical substances which are the subject of the material safety data sheets was such that for discretionary reasons also his Honour would have dismissed Mr Bialkower’s claim. That was the basic approach that ‑ ‑ ‑

GUMMOW J: That is a new hazard to copyright law. Would he have had a right to damages?

MS McCOLL: Your Honour, I did not turn my mind to Mr Bialkower’s rights in the original proceedings to any great extent, I must admit.

GUMMOW J: Yes. Let us pass on quickly.

MS McCOLL: Yes. Mr Bialkower, I might say, did appeal but unsuccessfully from all of the orders which he had suffered. Then the actual matter complained of in the defamatory sense, if I can put it that way, your Honours, appears in the right-hand column at about line 20, where the report states that ACOHS, which was the applicant in the original proceedings:

sued the publishers of a newsletter call Infax which had printed a report claiming ACOHS was one of two companies Bialkower successfully prosecuted for MSDS copyright infringement.
ACOHS also sued Bernie Bialkower as he had provided the information for the report.

Then there is the reference to Mr Bialkower’s counterclaim, and then critically, your Honours, the report states:

In respect of the initial claim, Justice Merkel found the publishers of Infax newsletter RA Bashford and Risk Management Concepts, had engaged in false and misleading conduct by publishing an incorrect report - there had been no such copyright case - and that Bialkower was the source of the information and authorised its publication.
He ruled publication of the “seriously misleading statements caused harm to ACOHS’s repute and goodwill and that harm is likely to have led to some loss of business or custom”.
He awarded ACOHS $20,000 damages and order Bialkower, RA Bashford and Risk Management Concepts to pay their legal costs.

Now, it was that portion of the matter complained of which defamed the appellant in the critical respects that, firstly, he is not, as I have already said, himself a party to the Federal Court proceedings. Rather, it was his company, R.A. Bashford Consulting Pty Ltd, which had been the first respondent. Secondly, his Honour ‑ ‑ ‑

GUMMOW J: This is all a bit artificial, by the way. It would have been open to join him, I suppose, under 75A, would it?

MS McCOLL: They would have had great difficulty, your Honour, because, as all the courts below have found and as indeed Justice Merkel found, his company was really very remotely involved in the publication. Its involvement lay only in the fact ‑ ‑ ‑

GUMMOW J: You would have needed knowledge for that.

MS McCOLL: You would have needed Yorke v Lucas knowledge on this, so they could not get there on that.

CALLINAN J: Ms McColl, if you look at 75B(1)(c) too, the language is very, very wide and obviously there is no attempt to bring your client in under it,

MS McCOLL: That is correct, your Honour.

CALLINAN J: It says “in any way, directly or indirectly, knowingly concerned”, and it interested me because there seems to be an implication in the judgments that Mr Bashford was in some way indirectly concerned. I know the references are to his company being indirectly concerned, but there is an implication that he personally might have been.

MS McCOLL: Certainly not in Justice Merkel’s judgment - indeed, in the entirety ‑ ‑ ‑

CALLINAN J: No, but in Justice Davies’ judgment I thought there was ‑ ‑ ‑

MS McCOLL: Justice Davies, with respect, his view does seem to have fluctuated, but I am certain even he acknowledged that Justice Merkel’s decision implicated the appellant’s company in the act of publication only in an indirect way. I will come to Justice Merkel’s judgment in a moment, but the second respect in which this particular passage in the publication was incorrect was, of course, in saying that Mr Bashford, the appellant, had engaged in false and misleading conduct by publishing the incorrect report because, of course, his Honour Justice Merkel had not referred to Mr Bashford – had not, as I have just said, referred to his company at all indeed in the substantive portion of his judgment, and had certainly not ‑ ‑ ‑

GUMMOW J: What do we know about the structure of this company?

MS McCOLL: Of the R.A. Bashford Consulting?

GUMMOW J: Yes.

MS McCOLL: It was a two shareholder, two director company which the appellant and his wife were the shareholders and directors, your Honour.

KIRBY J: Your client agreed that he controlled the company.

MS McCOLL: Yes, your Honour.

KIRBY J: It is a bit of a storm in a teacup, is it not? The company was his other face.

MS McCOLL: Your Honour, the respondent tried to run that argument before his Honour Justice Davies and failed on that argument.

KIRBY J: So it all depends on the fact that in that line 35 instead of the name of the Bashford company there appears R.A. Bashford?

MS McCOLL: Not only that, your Honour, but also that there was a finding that Mr Bashford himself had published an incorrect report, which again it was not Justice Merkel’s finding and it was not an accurate statement. In neither respect are either of those two references an accurate account of what Justice Merkel found and there has been no dispute throughout, certainly on my reading of the judgments, and really the fact that the defence of fair protected report was never pleaded seems to amount to an admission, we would submit, on the respondent’s part that it could never have succeeded in that defence. So those are the critical errors.

I might observe also in passing that the report states in substance that the finding was also that the persons mentioned had engaged in false conduct, and that in fact was not a finding of Justice Merkel’s either.

KIRBY J: Did the evidence show that your client had sought a correction to substitute the name of R.A. Bashford company for himself personally?

MS McCOLL: Yes. There was lengthy correspondence in which the appellant sought the usual remedies that ‑ ‑ ‑

KIRBY J: And the respondent refused to publish a correction?

MS McCOLL: There was disagreement as to the form of words which would be used and then ultimately as to what would amount to entire compensation for the problem, your Honour, so ultimately that was not resolved in the appellant’s satisfaction.

KIRBY J: Would you have had any complaint if there had been a correction of those two references to R.A. Bashford personally and the substitution of the name of the company?

MS McCOLL: Could we have had a complaint or if there had been an apology?

KIRBY J: You would have had a complaint for the misnaming of the individual but, I mean, it is a company your client owned or controlled. It seems a very paltry sort of a point in a sense.

MS McCOLL: If there had subsequently been an apology, then matters may have been different. We just do not know, your Honour. It would have depended no doubt on the speed with which any apology and/or correction was made and the extent to which it was published, but that did not happen and that is why we are here today, your Honour.

CALLINAN J: You reserved your rights to sue anyway.

MS McCOLL: We did.

KIRBY J: You know how in judgments you sometimes put in brackets Bashford for the company. Now, am I understanding the facts correctly that Justice Merkel used the short form for the company?

MS McCOLL: No, your Honour.

KIRBY J: That is a misunderstanding.

CALLINAN J: He used the initials, in fact, like an acronym.

MS McCOLL: He did not even use the initials of the appellant’s company. He used the initials of the joint venture which the appellant’s company had formed with the other company referred to, Risk Management Concepts, those initials were RMS, and that was the only reference throughout the judgment to who was the actual publisher or who might have caused to be published the matter. I will turn to the judgment in one moment. If I might just say ‑ ‑ ‑

KIRBY J: It is a new peril in writing reasons that if you put a short form for a company you might have somebody report it and then another case will be up before us as to whether that is a fair an accurate report of what the judge has written. However, you say that did not happen here.

MS McCOLL: It did not, your Honour. If I could just say before I leave page 246, that at the separate hearing pursuant to section 7A of the Defamation Act a jury concluded that the matter complained of - and the obvious inference is that caution - conveyed the imputation that the plaintiff - here the appellant - by publishing a false report concerning ACOHS Pty Ltd had been found by the Federal Court of Australia liable to ACOHS Pty Ltd in damages and costs for causing it harm and loss.

If I could then take the Court then to Justice Merkel’s judgment, which appears in the same volume and starts at page 170 and if I could also just say it has in fact been reported in 144 ALR 528.

KIRBY J: Which volume again, I am sorry?

MS McCOLL: Volume 144, your Honour.

KIRBY J: The microphone seems not to have its usual strength today, so if you could direct your attention to that, otherwise I will only hear every second word, which will not be good for you or me.

MS McCOLL: I will speak up. The parties are set out at page 172 and, as your Honours will see, as I have said, R.A. Bashford Consulting Pty Ltd was the first respondent, Risk Management Concepts Pty Ltd was the second respondent and Mr Bialkower the third, and then he was in turn the cross-claimant and ACOHS was the cross-respondent. The actual declaration which his Honour made is set out on the same page, which was that:

(a) in publishing or causing to be published an item entitled “Chemwatch Wins Copyright Case” on 2 December 1993 the first and second respondents engaged in conduct in trade and commerce which contravened section 52 of the Trade Practices Act 1974 (Cth);
(b) the third respondent was a person involved in the said contravention within the meaning of section 75B of the said Act.

The order then was that:

The respondents pay damages in the sum of $20,000 to the applicant.

And then, order 4 was the dismissal of Mr Bialkower’s cross-claim and then order 5 dealt with a claim for contribution, which the first and second respondents had made against Mr Bialkower by virtue and substance of the fact that he was indeed the source of the original and erroneous information which had been published in the newsletter.

If I could ask your Honours to turn to page 177, where his Honour dealt with how in fact the copyright dispute had arisen, there your Honours will see at line 22 in the complete paragraph on that page his Honour pointed out that:

The first and second respondents own and conduct a business known as “Risk Management Solutions” (“RMS”). RMS acted as an agent for Chemwatch in certain parts of New South Wales. The second respondent (“RMC”) ‑ ‑ ‑

GUMMOW J: What does that mean, “first and second respondents own and conduct a business”? Are they partners or what?

MS McCOLL: They had what certainly the appellant called a joint venture, your Honour. There seemed to be a debate as to whether it was a partnership or a joint venture, but that was the way in which they were associated.

RMS acted as an agent for Chemwatch in certain parts of New South Wales. The second respondent (“RMC”) conducted a software division as an adjunct to the business of RMS. In that capacity RMC published a monthly “Infax” newsletter to actual and potential customers of RMS and RMC. It did not appear to be disputed that both RMS and RMC were responsible and therefore liable for the publication of the newsletter which was published for and in the interests of both RMS and RMC.

And his Honour then referred to Lisciandro’s Case and the particular passage to which he referred was one in which her Honour Justice Kenny, I think, applied section 84 of the Trade Practices Act to bring in ‑ ‑ ‑

GUMMOW J: What does it mean to say that RMS and RMC were responsible for something when we do not know the legal nature of RMS?

MS McCOLL: That is a very good question, your Honour, and it certainly was one that puzzled me when I read it, but that is his Honour’s judgment and that is what we are fixed with.

GUMMOW J: Yes.

CALLINAN J: It might have been different if it had been defamation because of Webb v Bloch.

MS McCOLL: Yes, and certainly from our point of view and, of course, from the appellant’s point of view, the important point is, firstly, it did not in fact refer by name there to the first respondent and it certainly did not refer to him. Then his Honour set out the passage from the Infax newsletter of which ‑ ‑ ‑

HAYNE J: Sorry, just go back a bit, Ms McColl. What was the last proposition?

MS McCOLL: It did not refer to Mr Bashford, the appellant, himself.

HAYNE J: I understand that, but I thought you said it did not refer to the company.

MS McCOLL: By name.

HAYNE J: Yes.

MS McCOLL: Then his Honour dealt with the Infax newsletter and the controversial claim about some successful Court challenges for infringement of copyright and at page 178 line 20, RMS claimed:

that the Chemwatch news item was based entirely on information provided by Bialkower –

and that was a factual controversy his Honour resolved substantially in favour of the first and second respondents on their cross-claim for indemnity.

Then, relevantly, if I could next take the Court to page 179, at the top of that page, his Honour pointed out that:

although the proceeding was instituted as a consequence of Acohs’ s 52 claim, the primary dispute related to Bialkower’s claim for protection of copyright in Chemwatch’s MSDSs –

the material safety data sheets. Then his Honour sets out a large passage dealing with that aspect of the case and then, critically, at page 188, his Honour delivered his reasons as to whether or not there was a breach of section 52 of the Trade Practices Act and said at line 25:

In publishing the November 1993 Infax newsletter RMS and RMC published, or caused to be published, information in trade and commerce which was misleading and deceptive.

Then his Honour dealt with the irrelevance of lack of intention and the fact that they were not the original source of the information and said that those matters:

do not afford RMS or RMC a defence to a claim for breach of s 52. It is sufficient that RMC and RMS adopted the information as accurate and caused it to be published –

So that was his finding on the section 52 claim.

GLEESON CJ: What was the basis on which he made the declaration on page 172 that the first respondent engaged in conduct which contravened section 52?

MS McCOLL: Your Honour, as we read his Honour’s judgment, it must be on the basis that applying Lisciandro and section 84 of the Trade Practices Act and having regard to the relationship between the first and the second respondents, this joint venture of which I have spoken, and the fact that, if I could remind your Honour that at page 177 he had said that RMC, in effect, published the newsletter as an adjunct to this joint venture, that, as we understand it, was using section 84, his Honour must have applied RMC’s conduct or found the first respondent also to be liable for the second respondent’s conduct. That is how I have interpreted the way he came back and was able to make that declaration.

GLEESON CJ: The reason I asked the question is because, as I understand your case, it was that there were two inaccuracies on page 246. One is that the words “Consulting Pty Ltd” did not appear after the word “Bashford”; and the second is that it said that Bashford had published an incorrect report.

MS McCOLL: That is correct, your Honour.

GLEESON CJ: But what did Justice Merkel find Bashford had done?

MS McCOLL: That is right, your Honour, he did not expressly find, save by in effect reading between the lines as I have had to do. As I have just tried to explain, he did not expressly find it had done anything.

GLEESON CJ: I am just wondering whether the point about which this case appears to turn seems to proceed upon the basis that something is inaccurate if it is not absolutely literally correct. I understand the error in relation to the name but just at the moment I do not quite understand the error in relation to what you say is the second inaccuracy.

MS McCOLL: Simply put it is, your Honour, because his Honour ‑ ‑ ‑

GLEESON CJ: Is it an oversimplification?

MS McCOLL: His Honour did not make a finding that the appellant published anything.

GLEESON CJ: What did he find in order to justify his declaration that the appellant contravened section 52?

MS McCOLL: But, your Honour, the appellant is not the subject of the declaration.

GLEESON CJ: I am sorry, R.A. Bashford Consulting Pty Ltd.

MS McCOLL: That is correct.

GLEESON CJ: I want to understand the second inaccuracy. I understand the first one. What did Justice Merkel find that justified his declaration that R.A. Bashford Consulting Pty Ltd contravened section 52?

MS McCOLL: As best as I can understand it, your Honour, it was a form of vicarious liability based on section 84.

HAYNE J: What does that matter? Assume that the reasoning that Justice Merkel employed was wholly erroneous or cannot be discerned from his Honour’s reasons. Assume that. The fact is his Honour made a declaration. Is not the declaration conclusive of what his Honour in this case found by way of formal declaration?

MS McCOLL: It is certainly, your Honour, for the purposes of the issue of a report of his Honour’s judgment.

HAYNE J: I am obviously three steps behind the pace, Ms McColl, yet again, but is it not plain then that Justice Merkel found that R.A. Bashford Consulting Pty Ltd had engaged in section 52 conduct?

MS McCOLL: That is correct, your Honour. We do not dispute that, your Honour. We say he did not find that the appellant engaged in section 52 conduct. That is what the report said. The report said the appellant engaged in a breach of section 52, in substance.

HAYNE J: So am I right in understanding that the sole point about which the whole case revolves is the understanding at page 246 where the words “RA Bashford” twice appear, are those words to refer to the individual, not the corporation?

MS McCOLL: Your Honour, we would say it is more than one error because it was both the identity of the person made the subject of the orders and the conduct made the subject of any finding about conduct and indeed about the order for damages. It may be a matter of how you actually look at it, but one way or the other the declaration was not the subject of any finding of fact and was not rendered liable in any damages.

GLEESON CJ: In relation to the second error, Ms McColl, what do you say would have been a way of expressing the truth?

MS McCOLL: By using the full name of the ‑ ‑ ‑

GLEESON CJ: No, in relation to the second error. I understand the problem about the name, but in relation to the second inaccuracy, what do you say would have been an accurate report of what Justice Merkel found?

MS McCOLL: Well, firstly the word “false” would have been omitted. That was not a word which his Honour used.

GUMMOW J: Well, it contravenes section 52.

MS McCOLL: That is true, but this seems to me ‑ ‑ ‑

GUMMOW J: I know the word “false” is not in section 52.

MS McCOLL: Yes, the word “false” is not in section 52 and it was not in his Honour’s judgment either.

KIRBY J: But if it is in the section and the breach is found in the section ‑ ‑ ‑

GLEESON CJ: It should have said “misleading or deceptive”.

MS McCOLL: It should have, yes, your Honour. If you leave aside the identity of the appellant and you leave aside the word “false”, then substantively that passage would have been correct. Certainly, his Honour had made the declaration that we see at page 172 and certainly it was the fact that however he arrived at the conclusion the first respondent would have been bound by an accurate report of that declaration which his Honour had made and an accurate report as to who was liable for the damages.

GLEESON CJ: What is false conduct?

MS McCOLL: Certainly, in the context in which it appeared to have been used in these Federal Court proceedings – because it was originally a part of the statement of claim put up by ACOHS – it appears to have been used to convey a notion of intentional misconduct in relation to the inaccurate publication in the original Infax newsletter. The point was not developed at all by his Honour Justice Merkel because, as I have just said, his Honour did not advert to the proposition at all. It is indeed quite curious to know where the author of the matter complained of actually drew that expression and set it out in the matter complained of.

Apart from those passages to which I have just drawn the Court’s attention in his Honour’s decision, the issue of publication and, in the sense of the first two respondents, liability was not addressed again by his Honour, save in the context of dealing with the cross‑claim that each of the respondents had launched against Mr Bialkower. His Honour dealt with that at page 195, just for completeness, and found that Mr Bialkower, at line 35:

was the primary, but not the sole, cause of the breach of s 52 by RMS and RMC.

HAYNE J: You say a breach by RMS. RMS is not a party, is it?

MS McCOLL: No. It appears to have been his Honour’s way, as, again, we have sought to interpret it, of dealing with the fact that the first respondent was very indirectly connected and the newsletter was really published as some sort of adjunct, as he expressed it, to the joint venture, if I could put it that way. So that was his Honour’s judgment.

There were just two other matters that I wanted to draw to the Court’s attention briefly on the facts, and that is the evidence about the nature of the bulletin, which appears in volume 1, starting at page 83 in the evidence of Mr Wilkinson, who was the managing director of the respondent, who gave evidence at page 84 about the market to which his company published, which was that they aimed “to be a subscription publishing company”. That is at line 12. At about line 20, the subscription itself is identified as “$395 per annum”. Then at line 25, the process in which the respondent engaged in marketing the bulletin is set out, and it was marketed, he said:

to specific industry Occupational Health and Safety professionals . . . through extremely targeted direct mail and telephone marketing.

Then he was shown a standard letter, which I will take the Court to in a moment, and at the bottom of the page, about line 43, he said:

It was a very targeted, what is known in the industry as rifle shot form of marketing, very precise. It wasn’t scatter gun marketing, which is much broader.

HAYNE J: This man has been paying close attention to his marketing manager, has he not?

MS McCOLL: I am not sure that they were not one and the same person, your Honour. The advertisement to which he referred appears in the second volume at page 285 and, indeed, just on the two pages before – starting at page 283, perhaps, your Honours will see exhibit 3 which was tendered through Mr Wilkinson and it was a list of the sort of publications of which the respondent was responsible which show the diversity from “Bill Lawry’s Great Cricket Joke Book” to, on the next page, “Who’s Who”, “Daily Reflections for Highly Effective People” and the like. At page 285, the advertisement for the actual Occupational Health & Safety Bulletin appears. Without taking the Court to it in any perhaps great detail, at line 40 on page 285, your Honours will see that the bulletin was promoted as a vehicle which within “7 minutes a fortnight” could communicate:

the latest expert advice to prevent OH&S ‘blow‑ups’ in your organisation –

the sort of issues ‑ ‑ ‑

KIRBY J: What has the “7 minutes” got to do with it? That is how long it is supposed to take you to read it, is it? You are not supposed to study it with care, just read it very quickly?

MS McCOLL: That is apparently all the time ‑ ‑ ‑

KIRBY J: If you did that, you might not notice the difference between a company and an individual?

MS McCOLL: Then on the next page:

The offer is being made only to a select group. It is not available to the general business community and is not transferable –

which is interesting. Then on page 287, the same sort of concept is seen on the right:

Keeping You in the Know FAST!

Then on page 288, I suppose it is specific ‑ ‑ ‑

KIRBY J: Talk about faint praise:

it is very adequate . . . I find the Bulletin informative.

MS McCOLL: That was exactly the thought that came into my mind when I read Mr Aldrich’s commendation, your Honour. Then on page 288, in the middle column, at the bottom of the page in paragraph 7 it appears, the:

Bulletin is essential reading for:
Chief Executives  Personnel Managers
Lawyers & Accountants  Plant Managers
OH&S Managers  Training Officers
Union Leaders  Site Supervisors

So whoever targeted the market, it would appear from that list of identified people for whom it was essential reading, it seems to have been rather broadly based.

KIRBY J: What is the relevance of this to show that this is an audience that is important to your client?

MS McCOLL: This is just how the respondent advertised its bulletin. It goes, in due course, your Honour, to the duty and interest, which is the second issue which the court below identified. So if I could turn then to the judgment of the Court of Appeal. That starts at page 320 ‑ ‑ ‑

KIRBY J: You have skipped over, first of all, the 7A proceedings. They were conducted before a judge different from Justice Davies, were they?

MS McCOLL: I am not sure who the judge was, your Honour. They were conducted before a jury.

KIRBY J: Yes, I realise that, but there was a different judge presiding? We do not know that. Anyway, the findings were taken and it came before Justice Davies. Was that addressed only to the defences?

MS McCOLL: Yes, your Honour, that is –

KIRBY J: You skipped over Justice Davies’ judgment. Should we look at that at all?

MS McCOLL: I am happy to take the Court to it if it would assist. That commences at page ‑ ‑ ‑

KIRBY J: He had the advantage of hearing some actual real live witnesses, I gather?

MS McCOLL: His Honour’s judgment commences at page 291 and at page 292 his Honour dealt with the inaccuracies which he identified at paragraph 3, where his Honour found that:

This article was incorrect in two respects. Firstly, it used the name “RA Bashford” rather than the name “R.A. Bashford Consulting Pty Ltd”. Secondly, it described RA Bashford and Risk Management Concepts as “the publishers of Infax newsletter” and the relevant activity as “publishing”. That is not exactly what Merkel J found.

He referred to that passage in Justice Merkel’s decision to which I have already taken the Court, the two passages. The first is that which appeared at page 177 and the second is that which appeared at page 188.

HAYNE J: How does that square with the declaration which Justice Merkel made?

MS McCOLL: As I said before, it did not exactly square with it in the sense that the declaration found and named, in effect, the first respondent, whereas the ‑ ‑ ‑

HAYNE J: But on this point of publishers or publishing, did not his Honour’s declaration refer to “In publishing or causing to be published an item identified, the first respondent, R.A. Bashford Consulting Pty Ltd, engaged in conduct”?

MS McCOLL: That is correct, your Honour.

HAYNE J: What is the inaccuracy to which Justice Davies is there pointing?

MS McCOLL: Well, his Honour did not in fact himself refer to the orders. What he was referring to there, your Honour, is in fact the two passages to which he then refers and which I have already drawn the Court’s attention to ‑ ‑ ‑

CALLINAN J: Ms McColl, I am sorry to go back, but the others may have grasped this – I have not yet. Where in Justice Merkel’s judgment is the key finding against Bashford Consulting that makes them liable?

MS McCOLL: Well, as I tried to explain to his Honour the Chief Justice, your Honour, there is not an express finding. One has to read ‑ ‑ ‑

CALLINAN J: What is the basis of the declaration of the orders that his Honour made against Bashford Consulting?

MS McCOLL: The basis appeared to be a finding that by virtue of section 84(2) of the Act and by virtue of the involvement in the joint venture, the first respondent’s involvement in the joint venture as an adjunct to which it was said the newsletter was in fact published by the other joint venturer, Risk Management Concepts, and the newsletter itself was misleading. That appears to be the route by which his Honour found his way to the declaration.

CALLINAN J: Accepting the force of what Justice Hayne says about the declaration and the orders and not going behind them, it seems to be the position that there is no clear basis for the declaration and the orders against Bashford Consulting.

MS McCOLL: Your Honour may be entirely correct.

KIRBY J: Sometimes reasons are written against the background and the way a case is pleaded or a way a case is fought and if at trial - I mean, in a perfect world there should be a finding that sustains the orders, but if at the trial the whole thing was conducted on the basis that the Bashford company was involved in the joint venture and that it was responsible for the publication, then an ellipsis of that kind can happen.

MS McCOLL: Your Honour’s proposition may indeed be encapsulated in the passage which his Honour Justice Davies quoted at about line 32 that:

It did not appear to be disputed that both RMS and RMC were responsible and therefore liable for the publication –

and so on.

GLEESON CJ: Maybe there are some judicial proceedings of which it is not possible to prepare an accurate report.

MS McCOLL: Well, some may say that about some judicial proceedings, your Honour, but ‑ ‑ ‑

GLEESON CJ: Maybe there are degrees of accuracy.

MS McCOLL: The critical test, as formulated in the various authorities, is whether the report conveys an impression different to that which would, for example, insofar as evidence is given, be different to that which somebody present in the courtroom would have received. In the case of a judgment, the critical test would be whether or not the report is what the ordinary reader of the judgment would have gleaned from it if they had actually read the judgment themselves. So it has been formulated as one of substantial accuracy.

CALLINAN J: You would say the one thing you do have to get right is the parties. That is fundamental. The legal personalities who are parties to the proceedings.

MS McCOLL: That is correct.

KIRBY J: Yes. Well, we will get to the debate about this in due course. Of course reports of the court proceeding come out and often, not so much in this case but others, there is a very strict deadline and you have to get it accurate within the material that is provided by the court. The court may later be found to have itself been inaccurate, that is what the appellant process is about, but the report in the newspaper or the journal has to be an accurate report of what the court provides.

CALLINAN J: Mention of deadlines always intrigues me. They are entirely self‑imposed. The commercial imperative that drives publishers to meet a deadline is to get in ahead of somebody else. There is no rule of law that says you have to have your copy in by 4 o’clock in the afternoon.

KIRBY J: But that is the real world in which the law of defamation has to operate.

MS McCOLL: This was a fortnightly ‑ ‑ ‑

KIRBY J: We will allow you an occasional interruption to this debate, Ms McColl.

MS McCOLL: This was a fortnightly production in any event, so I suppose there was obviously going to be some sort of deadline but not with the same stringency as a daily newspaper no doubt. So then on page 293 Justice Davies developed the proposition about Justice Merkel’s ruling and the inaccuracies, and pointed out in paragraph 4 that:

Merkel J did not expressly rule that R.A. Bashford Consulting Pty Ltd published in the Infax newsletter. Rather, he held that Risk Management Concepts Pty Ltd conducted a software division as an adjunct to the business of Risk Management Solutions, a venture in which R.A. Bashford Consulting Pty Ltd and Risk Management Concepts Pty Ltd were the principals, and in that division Risk Management Concepts Pty Ltd published the monthly Infax newsletter. R.A. Bashford Consulting Pty Ltd was found to be liable, not expressly as a publisher, but as a principal of a business in the course of which Risk Management Concepts Pty Ltd published the newsletter.

And his Honour inferred that Justice Merkel’s words:

“caused to be published” may have been adopted to describe the position of R.A. Bashford Consulting Pty Ltd.

GLEESON CJ: Mr Bashford apparently gave evidence that the first inaccuracy did not bother him much at all. It was the second inaccuracy that was the cause of his problem.

MS McCOLL: That is correct, your Honour. Then his Honour referred to the process of the section 7A separate trial in which the jury found that the second imputation was conveyed and was defamatory of the plaintiff and had rejected the other two imputations, and opined that that accorded with his own reading of the offending article. Then his Honour dealt, on page 294, with in effect the appellant’s own reaction to the actual publication in the sense that at line 20 he “was very upset”. At paragraph 9 his Honour develops what particularly upset the appellant and, in particular, at about line 38, he:

had been extremely anxious to ensure that his own reputation should not be affected by any finding that he was involved in the publication of the Infax newsletter. Apparently, some evidence was put forward in the proceedings which would have implicated Mr Bashford . . . Mr Bashford denied any involvement. He gave evidence for almost a day ‑

and his Honour then pointed out at the top of page 295 that indeed in Justice Merkel’s reasons for judgment:

his Honour did not mention Mr Bashford or discuss the matters which must have been the subject of Mr Bashford’s evidence.

That, as I have already said, is the case. There was no mention of Mr Bashford from one end of Justice Merkel’s judgment to the other. Then at paragraph 11 his Honour dealt with the appellant’s reaction ‑ ‑ ‑

KIRBY J: Is it possible from the evidence to give a flavour of why Mr Bashford was so anxious about this and the satisfaction he had in the judgment of Justice Merkel? I mean it is difficult to see unless you sit in another person’s chair the sort of feelings that they have about these things. It seems a bit of a storm in a teacup to an outsider but maybe within his own professional group it was important to him. Obviously, Justice Davies heard evidence that it was.

MS McCOLL: And in his familial circumstances as well, your Honour.

KIRBY J: Did he give evidence before Justice Davies or not?

MS McCOLL: Yes, he did, your Honour.

KIRBY J: Just give me reference to the page where I can read that and try to understand his viewpoint.

MS McCOLL: Certainly, your Honour. It commences at page 3 of the first appeal book.

HEYDON J: Page 18.

MS McCOLL: Thank you, your Honour. I was looking at the bottom – at page 18. Perhaps if I could particularly refer your Honour Justice Kirby to page 24 where, at about line 15, the appellant dealt with the concerns he had about the Federal Court proceedings themselves, and the first concern not surprisingly was in any damages which his company might have become liable for. Then the second related, at about line 24 and following, to his familial situation and the fact that his family is indeed a legal family – his father was a District Court judge, his brother was a member of the Bar – and at line 35 he gave evidence ‑ ‑ ‑

KIRBY J: It is his wife’s father who was a District Court judge.

MS McCOLL: Yes, your Honour, his wife’s father, his father‑in‑law. Then at line 35 he gave evidence that:

I was very concerned that unless the matter was handled correctly that they could, they could once again get a false impression of what had happened and it was not something that I was eager to have to try and explain to them if the matter was not properly handled. So it was a matter of great concern to me to ensure that the case was properly handled and the result reflected my belief that I was not involved in the misleading or deceptive conduct, my assertion that I was not involved –

So that is the flavour of his subjective ‑ ‑ ‑

KIRBY J: Yes, thank you for that.

MS McCOLL: Then on the top of the next page he gives his reaction when he read Justice Merkel’s judgment at line 13, that he was:

overjoyed. The Judge had found that the commission of . . . misleading and deceptive conduct complained of was the result of information given to Phillip McCann –

who was an employee of the second respondent in the Federal Court proceedings –

by Dr Bialkower and there was no question of my having been involved in the commission of the conduct at all –

and then he made a reference to the finding about publication. Does that assist your Honour in ‑ ‑ ‑

KIRBY J: Yes, thank you.

HAYNE J: Well, that is Mr Bashford’s view of it. How does that square, if at all, with the declaration?

MS McCOLL: Certainly, his Honour Justice Kirby was seeking some understanding ‑ ‑ ‑

HAYNE J: I understand that, but my question is separate. How does it square with the declaration?

MS McCOLL: It goes back to the point, your Honour. The evidence to which I have just referred your Honour is that Mr Bashford personally had not in any way been implicated in the conduct and the order did not so find but the matter complained of so asserted. So that gives some colour to paragraph 11 of Justice Davies’ decision on page 295 about the appellant’s reaction. His Honour did then at paragraph 12 express a view that in effect he disagreed with the appellant’s approach and pointed out that Justice Merkel did not hold that the first respondent had:

had not involvement with the Infax newsletter.

Then there appears to have been a slight lapse and that his Honour then says:

On the contrary, he found that the company was liable for the defamation –

presumably that should have been pursuant to section 52 of the Trade Practices Act. Then his Honour said:

In this circumstance, an ordinary reader would not be likely to consider that there was any significant difference between the term “published” and the term “caused to be published”.

Then his Honour expressed an opinion about what he termed an “innocent libel”, and if I could pause there and say it is difficult to say how his Honour formed the view one way or the other whether this was an innocent or malevolent defamation in the sense that the journalist was not in fact called, but his Honour makes that observation and then says:

the description of a person as “publisher’ would not seem to carry any significantly greater defamatory imputation than would a description of a person as a principal of a business in the course of which the incorrect information was published.

Then his Honour refers to the fact that there was no evidence. At page 296 paragraph 13:

there is no evidence that Mr Bashford’s reputation was injured by the article –

and, of course, as we have set out in our reply, once the jury found whether defamatory imputation was published, there was no need to call any evidence, damage is presumed and, indeed, while his Honour there says, at about line 17, that he would not expect the article:

to have caused a ripple amongst those operating in the occupational, health and safety field.

Later, when he dealt indeed on the next page, his Honour dealt with the respondent’s section 13 defence, which is to the effect that the publication took place in circumstances which would not occasion harm to the plaintiff and pointed out in paragraph 16 that the section:

was not intended to operate in a circumstance such as the present where the offending article was sent to approximately nine hundred recipients, each of whom was working in the field in which Mr Bashford’s reputation was a matter of crucial importance to him.

His Honour then dealt with the respondents’ section 15 defence and in paragraph 18 Mr Hale, who was then appearing for the respondent, had:

submitted that, R.A. Bashford Consulting Pty Ltd was Mr Bashford’s alter ego and that, in any event, as the words “Pty Ltd” were not placed after the name “R.A. Bashford” or the name “Risk Management Concepts”, the reader would understand the reference to be a reference to a company. Mr Hale submitted that there was little distinction between “Published” and “caused to be published”.

And held, at paragraph 19, that:

as the article used the name “R.A. Bashford”, not R.A. Bashford Consulting Pty Ltd, the article was not substantially true and the imputation, which the jury found to have been conveyed, was not a matter of substantial truth.

And therefore concluded:

The article and the imputation which it conveyed were not true in substance.

His Honour next dealt with the respondents’ reliance upon common law qualified privilege and referred to the well-known passage in Adam v Ward making it clear that the communication has to be made by a person with:

an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential.

Paragraph 21 he refers to a necessity to defeat a defence of qualified privilege to prove malice and on page 299 in paragraph 22, held:

that the principal part of the article, that part which dealt with Mr Bialkower’s cross-claim, was published on a privileged occasion, because Mr Bialkower’s cross-claim raised issues which were of general interest to persons operating in the field of occupational, health and safety.

Insofar as it dealt with the copyright in Chemwatch’s material safety data sheets, which his Honour pointed out at about line 34:

were obviously of interest to persons in the occupational, health and safety field and the publication of a report of the case, at least insofar as it dealt with those issues, occurred on an occasion of qualified privilege.

At paragraph 23 his Honour held that:

Insofar as the judgment of Merkel J dealt with the claim for misleading and deceptive conduct under s 52 of the Trade Practices Act, that was not a matter of interest to persons in the occupational, health and safety field, apart from the fact that the persons involved were persons who worked in that field.

might have been a way of saying it might satisfy some salacious interesting gossip and not much more and, as his Honour pointed out:

It may be a moot point, in a particular case, as to whether the privilege attaches to statements that are not relevant -

and referred to Bellino and the passage in Justices Dawson, McHugh and Gummow’s decision concerning the fact that privilege will not attach to those parts of a matter complained of which are not relevant to the privileged occasion.

His Honour then held at paragraph 24, that he had come to the view:

that the report concerning the s 52 claim was made on a privileged occasion. That is because the judgment of Merkel J was of an interest to persons operating in the occupational, health and safety field.

McHUGH J: That is a misunderstanding of the law, is it not? It is not a question of whether something is of interest to you; it is a question whether you have an interest in it in the sense that the law defines the term. Chief Justice Latham was at pains to point that out on one occasion.

MS McCOLL: That is correct, your Honour. So, having found that the section - in fact, his Honour then said:

Although the report concerning the s 52 claim would not alone have been the subject of qualified privilege, for there was no duty to report on it and there was no particular interest in the subscribers to the Bulletin to receive information about it, nevertheless, the report was not irrelevant to the occasion. One can understand that the journalist would have considered it proper to mention this aspect of the case amongst the others which were discussed, particularly as the persons involved were persons who operated in the occupational, health and safety field.

His Honour paid no regard there, nor did the Court of Appeal, which I will come to in a moment, to the fact that even though it might have been perfectly proper to report accurately the outcome of the principal proceedings, here the particular report was inaccurate and the Court of Appeal in due course said that it set the cross-claim in context. As we have said, it is hard to see how you could set something in context by publishing an inaccurate report.

His Honour then dealt with the appellant’s submissions as to malice in an attempt to defeat the defence of qualified privilege and concluded on page 302 at paragraph 26 that the plaintiff had not discharged the onus which lay upon him to establish malice. There had been no evidence “to show malice or any improper purpose”. He concluded that the fact that the journalist who wrote the article was not called or his or her absence was not explained was not a matter from which he would draw any adverse inference because, in his Honour’s opinion, the article did “not suggest a personal attack” on the appellant and he would not infer “that the journalist was reckless”.

I might say - and we have referred to this in our submissions in reply - that in fact the journalist had contacted the appellant prior to the publication of the matter complained of for a comment which he had declined to give, and had been warned by the appellant that the judgment was very complex and should be read very carefully if any report was going to be published about it, some advice which the journalist either ignored or, even if it was taken on board, somehow failed to appreciate the significance of the way ‑ ‑ ‑

CALLINAN J: Where do we find that, Ms McColl?

MS McCOLL: Your Honour, that evidence appears at page 25 in the first volume. His Honour then rejected at paragraph 27 a submission that because the appellant’s name had been used rather than the corporate name:

the conclusion should be drawn that the journalist wrote the article recklessly –

and, indeed, somewhat confusingly. His Honour in fact at line 44 drew the conclusion that:

It appears to me that the writer of the article was not reckless but took a great deal of care to write a clear and fair article. By using the words “an incorrect report” and –

identifying Mr Bialkower as the source of the information. His Honour concluded that:

the journalist took care to ensure that the publication of the false and misleading conduct would be understood to be an innocent act on the part of the publishers.

Indeed, paragraph 28 on page 303 said, in effect, the misnaming of the parties was “a careless act taken by a journalist” and that even though Justice Merkel had not used – his Honour obviously means, in the substantive part of his judgment – had not used the corporate name:

I am satisfied that the journalist used the name “RA Bashford” in good faith intending to refer to the first respondent.

Then his Honour inferred that:

The full corporate names of the first and second respondents were presumably dropped to give a better flow to the article.

I might say that ‑ ‑ ‑

GLEESON CJ: Just leaving aside the issue about what I will call the second inaccuracy, the publishing false matter, would it have been an accurate report of the proceedings if the journalist, instead of saying “R.A. Bashford”, had said “R.A. Bashford Consulting Pty Ltd (a company controlled by Mr R.A. Bashford)”?

MS McCOLL: Yes, your Honour.

GLEESON CJ: That would have been an accurate report?

MS McCOLL: Yes, your Honour. Well, I am sorry, it would have been accurate to use the company name. In fact, Justice Merkel did not make any finding one way or the other as to who controlled the first respondent. As I have said, he did not refer to the appellant by name throughout the entirety of the judgment.

KIRBY J: But in the evidence in this trial your client agreed that he controlled the company.

MS McCOLL: That is correct, your Honour, but his Honour the Chief Justice was asking me whether it would have been an accurate report of Justice Merkel’s judgment.

GLEESON CJ: No, an accurate report of the proceedings.

MS McCOLL: Well, an accurate report of the proceedings.

GLEESON CJ: But did not the fact that Mr Bashford control that company emerge in evidence before Justice Merkel?

MS McCOLL: I am unaware of that, your Honour. Well, there was no evidence of that at the trial in this matter. So I should correct my answer to your Honour’s question by saying that the parenthetical addition that you put forward would not have been, on the evidence before Justice Davies, an accurate report either of the judgment or of the proceedings as far as we are aware.

GLEESON CJ: I was only trying to be of assistance to you, Ms McColl.

MS McCOLL: You can never be too sure, your Honour.

GLEESON CJ: If you believe that, you will believe anything.

MS McCOLL: That is right, believe that and you will believe anything. So then his Honour at paragraph 29 rejected the malice argument. At page 304 paragraph 30 his Honour also rejected what we submit here is the first issue, namely the proposition:

qualified privilege does not attach to a report of a legal case unless the report is true and accurate. That is certainly the case under section 24 of the Defamation Act, which provides a defence for the publication of a fair protected report.

But then his Honour pointed out that all of the cases to which he was referred were indeed cases about:

the publication of a fair and accurate report. In my opinion, those cases do not limit the ordinary principles applicable to common law qualified privilege.

KIRBY J: Now, do you accept that principle?

MS McCOLL: No, we do not, your Honour.

KIRBY J: But does it not follow from the structure of the Defamation Act that you have qualified privilege in Division 4 Part 3 and then you have protected reports in Division 5, and they are not alternatives - or rather they are alternatives and they complement and supplement each other.

MS McCOLL: They may in certain circumstances. The way we put our argument here, as I said in response to your Honour’s earlier question, is that in this context the defence of fair and accurate report really covers the field and that there is no room for the operation of a more ‑ ‑ ‑

KIRBY J: You have to say that, do you not?

MS McCOLL: We do.

KIRBY J: You have to say that where in a publication the matter complained of is in its substance and entirety a report of a court proceeding, then it must get up under a protected report and you do not go to other categories.

MS McCOLL: That is correct. It is either a fair report or it is nothing. I mean that does not leave out ‑ ‑ ‑

McHUGH J: You are forced to say, are you not, that the common welfare of society is not advanced by the publication of unfair reports of court proceedings?

MS McCOLL: Yes, your Honour.

McHUGH J: That being so, it follows there can be no qualified privilege.

MS McCOLL: That is correct, your Honour.

KIRBY J: But that is in a sense acknowledging the qualified privilege attaches but is rebuffed. I thought you were putting the proposition that qualified privilege is irrelevant when you are in the realm of protected reports. Now, what is it?

McHUGH J: I certainly was not suggesting that it applies. On a proper analysis of – as I would understand your argument, is that there never is any qualified privilege.

MS McCOLL: That is correct, your Honour. You do not get there.

KIRBY J: But that is hard to square with the way the Parliament has provided a number of alternative defences, one of which is qualified privilege, one of which is absolute privilege and one of which is protected reports. From the point of view of principle of interpretation, one would think one would interpret the Defamation Act in a way that is defensive of as many defences as are available to uphold freedom of expression.

MS McCOLL: If one has regard to the common law as it was at the time the Defamation Act was passed, we would say it is consistent with our proposition that the defence of fair protected report was an emanation of that species of defence formulated where the presumption of malice was rebutted by the occasion of the publication being in this context the report of judicial proceedings. The other categories of qualified privilege were developed to deal with those more specific duty and interest categories which normally arise where the recipient of communication is really imparted on a very narrow occasion from somebody to a very small class of recipients. That is the background against which the Defamation Act was passed and its various statutory predecessors. The fact that the defences are available generally but is not expressly said that a qualified privilege defence is not available in relation to a matter which would be covered by section 24 does not ‑ ‑ ‑

KIRBY J: I think I have led you into your principal argument. You were laying the ground and we have got through most of Justice Davies’ relevant judgments and you were going to go to the Court of Appeal in due course.

MS McCOLL: I was. But that is how we put, just to try and deal with it, your Honours.

GUMMOW J: Did you find in the Court of Appeal any treatment of the threshold question which is the relation between the common law and this statute?

MS McCOLL: Yes, your Honour. Well, the Court of Appeal did not deal with the legislation at all, your Honour. They did not touch on section 24.

McHUGH J: Is it not a question of giving content to the term “qualified privilege” where it appears in the Act?

MS McCOLL: That could be one way of putting it, your Honour.

KIRBY J: We have to do it that way because we must keep telling counsel, and apparently sometimes courts, that where you have a statute, the starting point is the statute, not all this learning that went on before. This has the authority of the Parliament elected by the people.

MS McCOLL: But we do have to bear in mind, your Honour, that section 11 of the Defamation Act preserves the common law defence of qualified privilege, so the common law is relevant in the context of the Defamation Act as well as the statutory defences.

KIRBY J: Yes, but only to the extent that it is left over from what Parliament has spoken.

GUMMOW J: But section 11 assists defendants, does it not?

MS McCOLL: It undoubtedly does, but we have to work with it, of course.

GUMMOW J: But you seek to turn it the other way round.

MS McCOLL: Well, we have to live with the fact that section 11 preserves the common law of qualified privilege and, to that extent, must equally preserve whatever common law defence of fair and accurate report of court proceedings would be left over and might somehow arise, apart from section 24 of the Defamation Act. The reason neither of the courts below really looked at the position under the defence of fair protected report, or do not appear to have drilled down into it in any great detail, may well be because the defence itself was never pleaded. Although the point we rely upon was raised, it does not appear to have been – it certainly was not considered in any detail at all in ‑ ‑ ‑

GLEESON CJ: At this stage of the proceedings, you are just meeting defences.

MS McCOLL: That is correct. That is all that happens. Once they were before his Honour Justice Davies, they were just meeting defences and dealing with damages, of course.

So then his Honour concluded that the defence of common law qualified privilege succeeded and dismissed in a lengthy passage, which I do not think I should trouble the Court with, the contextual truth defence and also damages. Just to give the Court a reference, at page 309 in paragraph 44 his Honour concluded that:

$25,000 would be an appropriate sum to award by way of damages.

In the Court of Appeal, the principal judgment was delivered by his Honour Justice Hodgson, which commences at page 323 of the appeal book. Importantly, we would submit, on page 324, after dealing in paragraph 9 with the structure of the Federal Court proceedings, his Honour points out at line 18 that:

One of the two companies in question was R.A. Bashford Consulting Pty. Limited (RABC), a company of which the appellant was the principal. However, RABC’s involvement in the publication was somewhat indirect: Infax was published by the second company, Risk Management Concepts Pty Limited (RMC), in connection with a business owned by the two companies.

The same point is reflected in paragraph 14 on the next page where his Honour accepted Justice Davies’ finding about the error in the original articles and added his own comment that, in relation to paragraph 2, the article had:

Suggested that the appellant was a publisher of the newspaper, whereas as noted above, RABC was somewhat indirectly involved in its publication.

His Honour then dealt with the arguments of the parties, and his decision commences at page 330, and in response to a particular complaint by the appellant which had been that his Honour Justice Davies had not in fact identified the necessary reciprocity of duty and interest in relation to his finding of qualified privilege, his Honour concluded in paragraph 31 that Justice Davies had in fact made such a finding in the sense that his Honour had referred to the relevant principle in Adam v Ward. At page 331, line 13, had not made mention of a duty but indeed had referred in the context of:

Noted that the claim for misleading and deceptive conduct was not a matter of interest to persons in the occupational health and safety field . . . that this report would not alone have been the subject of qualified privilege “for there was no duty to report it –

And his Honour then appeared to have inferred from that that Justice Davies must have turned his mind to the issue of whether there was in fact a duty. Leaving that aside, in paragraph 32, his Honour himself said that he himself was satisfied:

That this was an occasion of qualified privilege. Occupational health and safety is a matter important for the common convenience and welfare of society, and communications on matters relevant to that issue . . . promote that common convenience and welfare.

Then his Honour referred to the fact ‑ ‑ ‑

KIRBY J: You cannot contest that, can you?

MS McCOLL: We certainly do not dispute the proposition that matters relating to occupational health and safety are matters that promote common convenience and welfare.

McHUGH J: You would dispute, would you not, that that is the end of the question?

MS McCOLL: Yes. We certainly dispute that, your Honour.

KIRBY J: I am only taking it step by step.

McHUGH J: No attention seems to have been given in the Court of Appeal or the trial court in this case to section 22 of the Act, and in particular to subsection (3) of the Act, which was designed to overcome the Macintosh v Dun situation which prima facie seems to apply to this case, provided you could prove that your conduct was reasonable in the circumstances.

MS McCOLL: That is correct, your Honour. Section 22 was originally pleaded but it must have been abandoned, your Honour, because nobody refers to section 22 at all.

McHUGH J: It may throw some light on whether or not qualified privilege is available in a case like the present where you have a publisher by subscription. Macintosh v Dun held that qualified privilege did not arise in that context, and part of the reason for section 22(3) was to overcome that by saying that provided you satisfied section 22(1), the fact that you published it for reward was irrelevant.

MS McCOLL: That is correct, your Honour, it did not arise at all because at the end of the day all the respondent relied upon was common law qualified privilege.

GUMMOW J: Yes, I know, but what is the point of section 22(3) if you can always skate out through 11 by just saying are not common law?

MS McCOLL: His Honour Justice McHugh is making that - the respondent might well have pleaded section 22. It could have established its conduct was reasonable in the circumstances notwithstanding the fact that it was a subscription publication.

McHUGH J: But it may throw some light as to whether qualified privilege at common law is available. Prima facie, Macintosh v Dun would deny availability.

MS McCOLL: That is correct, your Honour.

McHUGH J: Then you had the legislature intervening in 22 and providing firms like Dun & Bradstreet with a defence provided their conduct in publishing is reasonable. How does that fit in with some development of the common law or overruling Macintosh or diverting it?

GUMMOW J: You have to say the common law is frozen in some way.

MS McCOLL: No, your Honour.

GUMMOW J: If it is unfrozen.

MS McCOLL: We do not say it is frozen at all; indeed, we embrace its inherent flexibility.

GUMMOW J: If it is unfrozen, why is not 22(3) a good indication of what it should be?

MS McCOLL: One still needs to, even if one is thrown back on the common law in the light of section 22, identify what would be the duty and interest, aliter the subscription contract, and as we have said in our written submissions, what you are thrown back to there is the general and common interest in the publication of accurate reports of court proceedings, otherwise there was no relationship between the respondent and the recipients of the newsletter. The only relationship was that created by the subscription contract even if section 22(3) says that can be ignored and that has some reflection on whether or not Macintosh v Dun is good law. You still come back to what then was the necessary relationship and there was none other than the general interest in accurately reporting court proceedings.

In terms of his Honour Justice Hodgson’s decision, his Honour, we submit, really fixed the matter on the fact that the respondent had accepted subscriptions for a newsletter and the fact that his Honour then concluded at line 36 on page 331 that it:

was morally and legally obliged to publish for subscribers matters of significance on that topic –

in respect of which he said:

the decision on the cross‑claim . . . fell within that description.

Although his Honour concluded that it would not have mattered whether there would have been an actionable breach of contract not to include the matter, it was sufficient in his opinion that there was a duty of a moral and legal nature to include matters of this type in the newsletter. His Honour said he accepted the proposition in Macintosh v Dun but you could not:

create a licence to defame other persons by undertaking a contractual obligation to supply information –

but he held at line 46 that:

the existence of a contract of the type that existed –

it, in his opinion:

support the existence of a duty of communication where there is truly a public interest in the communication being made.

His Honour then gave a reference to Howe & McCullough v Lees which is of course, we would submit, a very different case from this case and certainly a very different case from Macintosh v Dun, although it was considered by the High Court in how it distinguished Macintosh v Dun, and I will come to that in due course.

His Honour then distinguished the situation in paragraph 33 from a publication in a newspaper of general distribution, where he said:

it is very difficult to say that all the readership of such a newspaper has a duty or interest to receive a particular communication.

The distinction he drew was:

The publication of the communication in this case was in a newsletter distributed to persons responsible for occupational health and safety, who had paid a substantial subscription for the newsletter, and not to any wider audience.

His Honour then turned to what we have identified as the third issue, which was namely what was the significance of the fact that while the qualified privilege attached it to the cross‑claim and not to that part which dealt with the report of the section 52 proceedings, was there a sufficiency of relevance between the one and the other so that the arguably irrelevant material could be caught by the same privilege, and referred to lengthy passages from Adam v Ward and Horrocks v Lowe. Critically it might be noted here that in referring to Lord Finlay’s speech in Adam v Ward his Honour referred to what we would submit is now the accepted proposition, in Australian law at least that:

The privilege extends only to a communication upon the subject with respect to which privilege exists, and it does not extend to a communication upon any other extraneous matter ‑ ‑ ‑

GUMMOW J: Now, you say Australia. The pleading here asserted a number of lex loci delicti, did it not?

MS McCOLL: It did, your Honour.

GUMMOW J: Asserted all States and two Territories?

MS McCOLL: It did, your Honour.

GUMMOW J: What happened to that? That disappeared from the ‑ ‑ ‑

MS McCOLL: They seem to have also disappeared. They were never referred to. When we say Australia, we are referring to in particular Justice Brennan’s decision in Bellino where his Honour considered what has been said to be divergent views of Lord Finlay and Lord Dunedin in Adam v Ward, and concluded that Lord Finlay’s was that which had been preferred in Australian jurisdictions, and I will take the Court to that in due course.

GUMMOW J: There may be a problem as to what “common law” means in section 11. Section 11 is drafted on the basis that there is a common law of New South Wales, it seems to me.

MS McCOLL: That is most probably the fact, your Honour.

GUMMOW J: Yes…..1974, as it were.

MS McCOLL: Yes, and indeed it is a product of a Law Reform Commission report, which I think was dated 1970.

GUMMOW J: Yes.

MS McCOLL: 1971 I am told.

KIRBY J: Of course common law is only in the heading, it is not in the substance of the section.

MS McCOLL: I think that is correct, your Honour. At this stage if I could just pass over the extensive references in his Honour’s decision to Adam v Ward and return to that in due course. His Honour also referred to the potentially different argument advanced in different reasoning of Lord Diplock in Horrocks v Lowe and to, at page 335, a passage from Bellino, to which I have already referred, and held at page 336 in paragraph 43:

the correct principle to be drawn from the passages I have quoted is that a matter which is irrelevant to and unconnected with the privileged occasion does not have the protection of privilege at all . . . may also base an inference of malice . . . In so far as the passage from Horrocks v Lowe suggests otherwise, in my opinion it is not supported by Adam v Ward and is contradicted by the passage quoted from Bellino. However, as noted earlier, I think the cumulative effect of the passages quoted . . . indicate that, unless malice is inferred, material communicated on the privileged occasion will have the protection of the privilege unless it is truly unconnected with the subject matter of the occasion.

So that was the test which his Honour applied. Then in the next paragraph he concluded, at line 31:

It was in my opinion germane and reasonably appropriate to the occasion to give readers the context of the proceedings in which the decision relevant to occupational health and safety was made, and the part of the publication complained about really does no more than to indicate the nature of the proceedings and the result of the proceedings, so that the part of the judgment . . . is put in a context.

As I think I have already submitted, we would say it seems rather curious – as indeed, I think Justice Rolfe found – that you could put something in context with a report which was incorrect in the two respects his Honour had accepted. His Honour then dealt with the third matter and held that:

in my view, the requirement that a report of court proceedings be accurate in order that it have the protection of qualified privilege is a requirement that applies to one particular category of qualified privilege, namely that applicable to reports of court proceedings made to the public in general. It is not an additional requirement imposed over and above the other requirements for the reciprocal duty and interest category of qualified privilege.

His Honour then gave an example which was very far from this case. His Honour did not, as indeed Justice Rolfe pointed out, really identify what the distinction might be between, even on his Honour’s formulation of the defence, one applicable to the public in general and how that would apply in the case of a publication to at least 900 people. His Honour instead gave an example relating to a communication, in effect, on its face as between two people. His Honour then concluded at about line 23 on page 337 that:

none of the passages referred to by Mr McClintock support a requirement of accuracy in reporting the result of court proceedings in cases where the qualified privilege is the result of a reciprocal duty and interest of the type involved in this case.

His Honour Justice Sheller agreed with Justice Hodgson at page 322 and critical to his Honour’s Justice Sheller’s decision was his conclusion that:

the matter complained of was connected and sufficiently connected with the subject matter of the privileged occasion.

His Honour then referred to “various epithets” referred to in Adam v Ward, and at page 323 line 23 concluded that:

The last seven paragraphs –

of the matter complained of –

were directed to explaining the context in which the copyright claim was made, namely in response to an action brought against the claimant. The last three paragraphs . . . were part of that explanation . . . were relevant to the discussion of the claim and therefore relevant to the occasion.

KIRBY J: I am just not entirely clear from the discussion of where Adam v Ward and Bellino leave the principle of the precision with which the qualified privilege is viewed. In other words, do you look at the substance of the entire publication, the matter complained of, in order to see whether in substance it is dealing with the matter on an occasion of qualified privilege and for that purpose, or do you parse and analyse it and take a little bit here and a little bit there and qualified privilege only attaches to those matters only in respect of which (a) you get it right and (b) you are dealing with the matter on which you have a moral or other responsibility to communicate the subject?

MS McCOLL: Firstly, if I could say, you would certainly look at the whole of the matter complained of ;you would not take a nitpicking approach. But you do not only get the defence if you get it right because, of course, the defence is available in circumstances where you are excused for the publication of erroneous and, indeed, defamatory material by virtue of the occasion upon which the information is communicated.

McHUGH J: But that means you have to define the occasion with some precision and it means, more importantly, that you have to define both the duty and the interest with some precision. Your written submissions do not seem to define with any precision, as far as I can see at all, what is the interest. We know as a matter of authority that interest has to mean something apart from its quality as news or information. It has to be something sufficiently tangible that the law will protect. What is the particular interest here? Is it that every person in the community has an interest that the law will protect in receiving information about occupational health matters? If that is the interest, then the capacity for defamation seems very great. Is it something more limited? Is it an interest in those persons who may have to comply with health and safety regulations? The other question is, what is the duty of this particular publisher? Until you define those matters, you cannot define what the occasion is and you cannot define what is relevant or irrelevant to the occasion.

KIRBY J: Justice McHugh has just put in more precise terms the matter that was concerning me about where we are left in terms of legal authority by Adam v Ward and by Bellino.

MS McCOLL: Certainly, in terms of the particular interest, the interest in terms of the market were those to whom it is said this bulletin was published, would have to be put in terms of they were persons who were said to be responsible for the discharge of occupational health and safety issues within particular workplaces.

McHUGH J: Then that raises the question, do you consider each publication and the content of the particular publication?

MS McCOLL: We say you consider the actual communication itself, not the particular publication, your Honour. I mean, that was the context in which this matter was published, but you have to look at the defamatory communication, the matter complained of here, to determine whether the occasion attached to the particular communication, not just to the fact, as, with respect, we would submit Justice Hodgson appears to have looked at it, the newsletter itself in general.

McHUGH J: Yes.

MS McCOLL: Then in relation to the duty, as I think we have already sought to say and we did seek to say in our submissions, there was no duty which could exist apart from – no duty of the sort recognised by the common convenience and welfare of society in a sense that it is one that was not self-imposed, which here the so-called duty was by virtue of a subscription context, that one contract, that one which society at large would recognise as imposed on the respondent. We say society would not recognise a duty at large other than, as I have already sought to say, that common interest in accurately communicating the results of court proceedings.

So, if our submissions are somewhat bereft of a specific identification of a duty in the usual qualified privileged sense in the respondent, it is because our submission is that there was no such identified duty, or certainly the duty was not correctly identified in any respect by the court below and that one could not exist that would not satisfy the relevant reciprocity.

McHUGH J: Are you familiar with De Buse v McCarthy, an English Court of Appeal decision in 1942, where it was held that ratepayers had no interest in the relevant sense in receiving a report which a committee of a council had forwarded to the council and the council then sent it on to the ratepayer?

MS McCOLL: I cannot say I have looked at it.

McHUGH J: You might have a look at that; it is in [1942] 1 KB.

MS McCOLL: We will do that, your Honour.

KIRBY J: Such narrow views may have a chilling effect on publication and on the work that qualified privilege is expected to do in society.

MS McCOLL: We would submit the greater chilling effect, your Honour, would be on condoning the publication of inaccurate reports of court decisions because then a court could never be confident that its processes could be fairly explained to the public at large or accurately explained to the public at large. Those are the competing evils that have to be balanced or the tensions that have to be decided in this case. What is for the better convenience and welfare of society? Is it that we have accurate reports of court proceedings or that in some particular circumstances an inaccurate report is condoned? We would submit that it is the former.

Your Honours, if I could just complete a consideration of the Court of Appeal by turning to, I think, Justice Rolfe who agreed with Justice Hodgson on the occasion of qualified privilege but then disagreed on the other two issues. At the bottom of page 338 in paragraph 55 his Honour disagreed:
with Justice Hodgson’s decision that the part of the article containing the imputation was within the protection of that privilege.

And concluding at page 339, paragraph 56 that:

this imputation was not relevant to the privileged occasion in the manner in which the authorities . . . demand.

Then pointing out that:

The assertion that a person has published a “false report” is a potentially seriously damaging one. The identity of the publisher of the report, if it be relevant at all, is only relevant so it seems to me, to provide veracity or authenticity to it. Thus, a wrong statement as to the publisher does not achieve this end and, hence, it becomes irrelevant.

So his Honour, in fact, formed the conclusion at line 20 that:

the wrong attribution of the publisher . . . is “truly unconnected with the subject matter of the occasion” .

In paragraph 57 he concluded:

that the incorrect statement of the publisher –

did not –

indicate the nature and result of the proceedings. It intruded material into the article, which was not only wrong, but irrelevant to its essential thrust.

Then his Honour held in paragraph 58 that the appellant should also have succeeded on his third submission and that:

The authorities, to which –

Justice Hodgson had referred –

make it clear that for qualified privilege to apply to reports of court proceedings, such reports must be accurate. I am unaware of any principle, which restricts this requirement in relation to such reports to the public in general. If there was, it would necessitate some quantitative evaluation of the members of the public, which the recipients of this publication were, necessary to establish “the general public”.

His Honour then pointed out that:

the importance of communicating material on occupational health and safety to members of the public concerned with and interested in that subject, has been established . . . there is no reason shown in principle why, if that is to be done through the report of court proceedings, any such report should not be, conformably with established principles, accurate. I find the contrary conclusion somewhat strange, particularly against the background of reciprocal rights and duties to receive and furnish information.

So that is the decision of the Court of Appeal and we submit that the majority erred in rejecting the submission that the defence of qualified privilege could never apply to an inaccurate report of judicial proceedings.

KIRBY J: Is that an absolute rule or does it depend on the particular circumstances? Would, for example, a typographical mistake that deprived it of being absolutely accurate but was reasonably clear on the face of the document be sufficient to take you outside the ‑ ‑ ‑

MS McCOLL: A typographical error which did not lead to a substantially inaccurate report would not be an inaccurate report of court proceedings, your Honour. To get to the first premise, you have to have a report which was not accurate of judicial proceedings. That is the starting point. Our submission is that the ‑ ‑ ‑

KIRBY J: In a sense there is a problem inherent in the fact – I mean, it is like the agitation in the community about the sentencing decisions of judges. If the community knew all of the detail of the case, they would often be much more understanding and I think the Chief Justice has said that when you test people and give them more detail they sometimes turn out to be more lenient than the sentence actually passed. Now, you cannot, in the nature of publications, put everything in. It is just not possible. It is not a law report. It is an occupational health and safety document. So it is always going to be a matter of degree.

MS McCOLL: Your Honour, I would not like to get started on the question of media reporting of sentences. They would fall foul of every possible defence of report of accurately ‑ ‑ ‑

GLEESON CJ: You have had extensive editorial experience yourself, Ms McColl.

MS McCOLL: I have, your Honour, and on many occasions I have expressed an opinion about media’s reports of sentencing cases.

KIRBY J: Yes, but try as you did and might, you are not going to get newspapers to become law reports. Similarly, you are not going to get an occupational health and safety to be as boring as law reports are to most ‑ ‑ ‑

MS McCOLL: We might actually get newspapers accurately to report court proceedings, your Honour, if the appellant’s argument in this case is upheld.

CALLINAN J: You only have to contrast reports of court proceedings in this country with reports in the United Kingdom and the United States, where properly qualified and experienced journalists in legal matters publish reports which would shame most of the reports made in this country.

MS McCOLL: I mean, one of the vices of media reporting of court proceedings these days is that court proceedings are not reported by qualified court journalists. That is one of the problems which is ‑ ‑ ‑

KIRBY J: Yes, but the choice may be between no reportage at all and reports which sometimes have small but inconsequential errors in them.

MS McCOLL: That comes back to my proposition: if they are inconsequential errors, then we are not in the realms of the debate in which we are currently engaged.

CALLINAN J: It also comes back to economics too.

MS McCOLL: I am sure it does, your Honour.

CALLINAN J: In all this discussion about interest and altruism and public duty, nobody ever mentions the word “profit”.

MS McCOLL: Well, Justice Hunt mentions it, your Honour, in Waterhouse ‑ ‑ ‑

CALLINAN J: I am pleased to hear that.

MS McCOLL: ‑ ‑ ‑ where he points out that the defence of fair and protected report is one of those rare occasions where the fact that you do report for profit is absolutely irrelevant to whether or not you can get the defence and, as we have set out in our written submissions, that is one of the unique characteristics of the defence of fair and protected report, that it does not matter how large the extent of the circulation or publication of the fair and protected report, nor, indeed, whether you publish for profit.

CALLINAN J: It is just all this talk of high‑mindedness which is supposed to surround publication I find unconvincing.

GLEESON CJ: Ms McColl what is the actual origin of that word “fair”?

MS McCOLL: It finds its origin, your Honour, in the history of the development of the defence itself, which we have set out at some length in our written submissions. We did not put on our list of authorities all of the cases to which we refer, but if your Honour would turn to our written submissions where we have set out the history of the defence at page 8, the expression appears to have been used - originally the expression appears to have been “if it was a true account of what took place in a court of justice” and in paragraph 53 of our written submissions we point out that, indeed, as long ago as in a case of Hoare v Silverlock Chief Justice Wild upheld a defence that the matter complained of was a fair and substantially correct report of a trial.

GLEESON CJ: I suppose the concept of a fair report, as distinct from a true report, is that it is intended to add something to it. That is to say considerations of balance might come in.

MS McCOLL: And also considerations that you do not have to report obviously verbatim, which would be an impossible task, everything that happened in the proceedings but so long as you substantially reflect what took place during the trial or what is substantially a report of the judgment.

GLEESON CJ: But it might be true to say that a witness said something, but it might not be fair because two pages later he might have said, “I want to correct what I said earlier”.

MS McCOLL: If I could give a classic illustration of a case of Pillon which was a very painful experience in a case where the defendant had pleaded bad reputation, and Mr McPhee was appearing for the plaintiff, and the defendant’s bad reputation witnesses tended to get called in the morning and give their evidence‑in‑chief in the morning and the publication in question was I think a publication from the southern part of New South Wales. The reporter from that publication would sit in court and take down all the examination‑in‑chief, which naturally said terrible things about the plaintiff, file that report and never publish Mr McPhee’s cross‑examination, which usually resulted in the witness ending up in small pieces on the courtroom floor. Indeed, in that case the statement of claim was amended to include a claim for aggravated damages based on that inaccuracy in the reporting of the evidence of those witnesses.

McHUGH J: This was the problem that the Sydney afternoon newspapers, and no doubt newspapers in other cities, having published five or six editions in the afternoon. By the time the actual publication came out the evidence-in-chief which was reported may have been destroyed, so it was not a fair report, as at the time of publication .

MS McCOLL: Yes. That perhaps picks up to a certain extent Justice Kirby’s deadline point but, as Justice Callinan said, it is really at the journalist’s peril whether they choose to publish on the same day as opposed to waiting to get the entirety of the witness’ evidence.

CALLINAN J: Nobody is making them publish five or six editions in the afternoon.

MS McCOLL: I do not think they do it any more, your Honour. It is the economics.

CALLINAN J: They can publish the next afternoon, anyway, and get it right.

KIRBY J: I just think there is a bit of a danger here that lawyers will, with their love of accuracy, impose burdens that really become an imposition and an impediment to publication at all, and it is in the general interest and benefit of the community that there should be publication. We are only a small country; we do not have the resources to have, like the United Kingdom and the United States, teams of law graduates as journalists. We just do not have that number as personnel.

MS McCOLL: I am not sure what the qualifications of the journalists are in other proceedings, but one thing that does not require any additional resource is, to pick up Justice Callinan’s quote, “waiting till the next day” or in this case “reading the judgment carefully”. If I could just answer your Honour the Chief Justice’s question, that expression “fair” does appear to have emerged somewhere in the early part of the 19^th century.

GLEESON CJ: It seems then that “fair” means “true”, plus perhaps something more, but never less than “true”?

MS McCOLL: Yes, never conveying a false impression of the proceedings if the converse of true can be accepted as false.

GLEESON CJ: That expression must mean materially false?

MS McCOLL: Yes, that is correct, your Honour, and we have given some references, I think, in our submissions in reply to the various passages in Chakravarti, which adopt Anderson’s Case, in which that notion of substantially accurate was accepted as the right test.

GLEESON CJ: So that if there is an error, it is the materiality of the error that has to be considered?

MS McCOLL: That is correct, your Honour, and I think Justice McHugh and Chief Justice Brennan in Chakravarti pointed out that you never really knew how the defence of fair protected report was going to run until you knew precisely how it was pleaded and whether it was dealing with the plaintiff’s defamatory imputation. It is a plea in confession and avoidance. As we have also said in our written submissions, the occasion of the defence of fair and protected report does not arise at all if the report is not fair and accurate.

McHUGH J: The test in Thom’s Case is a good working rule, is not it?

MS McCOLL: That is correct.

McHUGH J: When it left you with a materially different impression from what a person in court would have ‑ ‑ ‑

MS McCOLL: That is what the Law Reform Commission relied upon when they put only the concept of fairness in section 24 as opposed to also accurate, because that was seen, in effect, as synonymous. So if we could just turn to what we would submit are the common roots of both the defences of qualified privilege and fair and protected report of court proceedings, and take the Court briefly to what we submit is the locus classicus of the defence of qualified privilege in the decision of Toogood v Spyring 149 ER 1044, and the passage which we set out in our written submissions, but it critically appears at page 1049 in Baron Parke’s speech where, at the bottom of the page, he said:

In general, an action lies for the malicious publication of statements which are false in fact, and injurious to the character of another . . . 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.

Your Honours, a like articulation of the notion of the common convenience and welfare of society can be found in the decision about the fair and accurate report defence of the Privy Council in Perera v Peiris [1949] AC 21 of the decision where Lord Uthwatt said ‑ ‑ ‑

GUMMOW J: Lord who?

MS McCOLL: I am not sure how to pronounce it, your Honour.

GLEESON CJ: What page was that, Ms McColl?

MS McCOLL: Page 21, your Honour. I am sorry, page 20. If your Honours could start at page 20.

GLEESON CJ: Thank you.

MS McCOLL: Where, about point 5, his Lordship said:

Their Lordships do not propose to enter on that inquiry –

as to considering the nature of proceedings of a commissioner – whether they were judicial proceedings or fair reports of parliamentary proceedings ‑ and continued:

They prefer to relate their conclusions to the wide general principle which underlies the defence of privilege in all its aspects rather than to debate the question whether the case falls within some specific category. The wide general principle was stated by their Lordships in Macintosh v Dun to be the “common convenience and welfare of society” or “the general interest of society”, and other statements to much the same effect are to be found in Stuart v Bell and in earlier cases, most of which will be found collected Mr Spencer Bower’s valuable work on Actionable Defamation. In the case of reports of judicial and parliamentary proceedings the basis of the privilege is not the circumstance that the proceedings reported are judicial or parliamentary – viewed as isolated facts – but that it is in the public interest that all such proceedings should be fairly reported. As regards reports of judicial proceedings reference may be made to Rex v Wright where the basis of the privilege is expressed to be “the general advantage to the country in having these proceedings made public”, and to Davison v Duncan, where the expression used is “the balance of public benefit from publicity”; while in Wason v Walter the privilege accorded to fair reports of parliamentary proceedings was put on the same basis as the privilege accorded to fair reports of judicial proceedings – the requirements of the public interest.

Then on page 21:

Reports of judicial and parliamentary proceedings and, it may be, of some bodies which are neither judicial nor parliamentary in character, stand in a class apart by reason that the nature of their activities is treated as conclusively establishing that the public interest is forwarded by publication of reports of their proceedings.

Then his Lordship considered whether or not the privilege would extend to the proceedings of other bodies and the particular tests which applied to determine that issue.

KIRBY J: One question that occurs to me is whether that statement, “stand in a class apart”, which is a core principle that you are urging, stands with the way in which the Defamation Act of New South Wales is structured. It just does not seem to stand. It is not a class apart; it is simply one of a number of defences. Absolute privilege, qualified privilege, protected report, comment - they are all there.

MS McCOLL: As, too, it would be at common law, your Honour. It does not differ in that sense.

KIRBY J: That is true but once you have a statute, or you have a structure of a statute, you are in a new field of discourse, it seems to me, and the obedience must be to the statute. It is true that by section 11 the provision of defences is reserved, but the structure of the statute is the will of the people in Parliament speaking for the courts. Lawyers love the common law, they love judge‑made law. They are not so fond of statutes, but our duty is to the statute.

McHUGH J: But, in this particular case, the defence does not arise under Division 4.

MS McCOLL: That is correct.

McHUGH J: It is not alleged that it comes within Division 4. They rely on section 11 as picking up the common law, saving the common law.

MS McCOLL: That is correct, your Honour. Might we also briefly refer to Justice Brennan’s observation in Stephens v West Australian Newspapers 182 CLR 211 and, in particular, that passage at 247 where his Honour dealt with fair and accurate reports of proceedings in Parliament and in the courts. He said they:

are published on occasions of qualified privilege. In these cases, it is the public interest in the proceedings themselves, not in the subject matter discussed in those proceedings, which creates the occasion of qualified privilege.

His Honour then referred to other proceedings in which:

Privilege may also attach to the publication of fair and accurate reports –

and, at about point 6 on the page repeats a portion of that passage from Perera v Peiris, to which I have already drawn the Court’s attention. One way to approach the question, we would submit, is to have regard to one of the sort of rhetorical questions which is frequently asked by courts in determining whether or not an occasion of qualified privilege arises, namely whether the great mass of right-thinking people would think in the particular circumstances that the relevant duty or interest arose. That is a reference to a passage from Stuart v Bell, which we did not put on our list of authorities but it is referred to in some of the cases to which I will take the Court in due course.

We would ask here whether – and submit the answer would be in the negative – the great mass of right‑thinking people would think it was the defendant’s duty to publish a false order and inaccurate report of a court proceedings and, as we have said, the answer there would be, we submit, in the negative.

GLEESON CJ: What does it mean to speak of a duty to publish a report for court proceedings?

MS McCOLL: Perhaps I should have expressed it in terms of the general interest to publish a report of court proceedings. There is, in fact, no duty – a newspaper can decide whether or not it wants – or anybody can decide whether or not they want to publish reports of court proceedings and probably the better way of putting it would be whether the great mass of right‑thinking people would think there was any interest in the reporting, or inaccurate reporting, of court proceedings and, again, we would submit the answer would be in the negative. It is not a question of duty. It is expressed always in terms of the public interest in receiving accurate reports of court proceedings.

It is true, as we have tried to explain in our written submissions, that it has not really been clearly identified, nor been a particular matter of controversy hitherto, whether, as we read the authorities, the defence of fair protected report was, in effect, a subset of qualified privilege, or was a defence which stood apart from and outside the classic defence of qualified privilege. Your Honours Justices McHugh and Gummow referred in Bellino to the fact that it was not until the latter part of the 19^th century that the defence of fair comment, like the defence of qualified privilege, came to be recognised as a separate genus of report and it is certainly the case that there is no clear articulation, prior to this case, as we understand it, of a bright line between the defence of qualified privilege and a defence of fair and protected report.

McHUGH J: But it is because the law developed. Shortly before the end of the 18^th century you would not even see the term “privilege” in any of the judgments.

MS McCOLL: That is correct.

McHUGH J: “Justification” was the term that was used and it was used in a very wide sense to include what we would call truth today and something approaching qualified privilege but it is not until you get into the 19^th century that the term “qualified privilege” starts to be used and then you have the exposition of it in Toogood. But the question of fair report really does not depend on the type of considerations that are referred to in Toogood, does it, as the Chief Justice’s question to you brought out. It depends on public interest quite independently of duty and interest in persons receiving it.

MS McCOLL: We embrace that, your Honour, but the common thread between the two is this notion of the common convenience and welfare of society, whether expressed as the public interest in the case of the defence of fair protected report or the particular sort of duty and interest of a more narrow nature, we would submit, in the case of defences of qualified privilege.

McHUGH J: I do not have to have any duty to publish a fair report at common law to obtain protection. As long as I publish a fair and accurate I can publish it to anyone I like.

MS McCOLL: That is correct, and to as many or as few.

McHUGH J: So duty and interest do not really come into it. It is very much sui generis really, is it not?

MS McCOLL: That is our submission, your Honour, and it is certainly the case, as your Honour’s historical account of the development of the principle concerned reveals. If you look at again the historical section of our written submissions, which we did not trouble the Court by putting all of the authorities on our list of authorities to be referred to, but again in what according to Spencer Bower is the earliest case on the defence, which is Curry v Walter in 1796 where Chief Justice Eyre had summed up to the jury on the basis that even though the material was in effect defamatory, because it was a true account of what took place in a court of justice the publication was not unlawful and there was a rule nisi. The matter was argued and adjourned on the basis that the court was in doubt as to whether justification should have been pleaded because, as your Honour says, by that stage the notion of privilege had not really been formulated conceptually and it appears they actually never gave a judgment. They did not have a judicial commission looking over their shoulders apparently, but that fits in with that historical development.

McHUGH J: But if I write a letter to a friend and I say, “What do you think of X being convicted of fraud by a District Court jury?”, and have no qualified privilege at common law because there is no duty and no interest in the matter, but so long as it is a fair and accurate report I am protected. But what about the converse case? Supposing I write to a friend and I say, “I don’t think you should employ this particular person; he was convicted of fraud by a District Court jury two years ago”. Now, it turns out that my report of that proceeding is inaccurate. Do I lose my privilege?

MS McCOLL: That is very close to Justice Hodgson’s example, your Honour, and we would submit you do. The privilege, as we have said about their particular report, occupies a field. It applies whether or not you publish to one person or to a million or to seventeen.

McHUGH J: Let us press it a little further. Supposing I am asked to give a report about a person who is going to be employed by a third party and in good faith I say, “That person has a conviction for fraud”. Now, that occasion is privileged. Why should I lose a privilege if I untruly state in good faith that a jury has convicted that person of fraud, or that person was convicted of fraud in the District Court before Judge So‑and‑So last year.

MS McCOLL: You should lose it, we would submit, assuming this is within your Honour’s example, because it is not an accurate report of judicial proceedings.

McHUGH J: I know it is not, but the occasion itself is privileged, is it not?

MS McCOLL: But that is the tension. When you report judicial proceedings it is the fact that you are reporting those judicial proceedings which attract the occasion of qualified privilege, to use that expression loosely here. You do not have that occasion in your Honour’s example. You have a different occasion, namely a potential or a past employer reporting ‑ ‑ ‑

McHUGH J: But my communications with the potential employer attract the doctrine of qualified privilege. It is an occasion of qualified privilege and anything I say that is relevant to that occasion concerning the character of the potential employee is protected. Why should it make any difference? Why should I lose that privilege or not even have it if, instead of simply stating the fact that the person has a conviction for fraud, I state the manner in which the person was convicted?

MS McCOLL: You should lose it, your Honour, because the public interest in the accurate reporting of court proceedings is far greater than the individual or particular interest or the particular duty and interest relationship in terms of a referee, if I can put it that way, passing on information to a potential employer.

GLEESON CJ: Does your argument turn a shield into a sword?

MS McCOLL: I am really ‑ ‑ ‑

GLEESON CJ: You use the circumstance that defeats the defence, or potential defence, of protected report to defeat the defence of qualified privilege. You will not misunderstand me if I say you are aggressively using a feature of the defence that was not pleaded against you, or a feature of the case that would have defeated the defence that was not pleaded against you, to defeat the defence that was pleaded against you.

MS McCOLL: That is true. In that sense we are, your Honour. We would submit in these circumstances there is absolutely nothing wrong with that. This Court has to make a decision whether there is a larger public interest in accurately reporting judicial proceedings than the particular interest in people in the example Justice McHugh gives, communicating freely as between each other as to matters which are ordinarily protected by what we submit is the narrower qualified privilege.

McHUGH J: I have to say from the very beginning of your argument I thought that your second point was probably a better point than your first point, that is to say, whether this is an occasion of qualified privilege independently of whether it was a fair or accurate ‑ ‑ ‑

MS McCOLL: I will get there, your Honour. I am not quite sure when at the moment, but I am sure at some stage before I sit down I will get there, your Honour.

If I could just then take the Court briefly to two other decisions which we submit encapsulate the concepts we have been talking about. The first is the decision of Wason v Walter [1869] 4 LRQB at page 73, which was of course the case about protected reports of parliamentary proceedings within which there was reference to the analogy between that defence and the defence in relation to the publication of proceedings of courts of justice. In the judgment of the Chief Justice at page 87 at point 5 he pointed out that:

It is now well established that faithful and fair reports of the proceedings of courts of justice, though the character of individuals may incidentally suffer, are privileged, and that for the publication of such reports the publishers are neither criminally nor civilly responsible.

Then he referred to the basis upon which that immunity rested and pointed out that while:

it is true that by malice, as necessary to give a cause of action in respect of a defamatory statement, legal, and not actual malice, is meant, while by legal malice . . . is meant no more than the wrongful intention which the law always presumes as accompanying a wrongful act without any proof of malice in fact, yet the presumption of law may be rebutted by the circumstances under which the defamatory matter has been uttered or published, and, if this should be the case, though the character of the party concerned may have suffered, no right of action will arise. “The rule . . . is that, if the occasion be such as repels the presumption of malice, the communication is privileged, and the plaintiff must then, if he can, give evidence of malice.”

Then on page 88:

It is thus that in the case of reports of proceedings of courts of justice, though individuals may occasionally suffer from them, yet, as they are published without any reference to the individuals concerned, but solely to afford information to the public and for the benefit of society, the presumption of malice is rebutted, and such publications are held to be privileged.
The other and the broader principle on which this exception to the general law of libel is founded is, that the advantage to the community from publicity being given to the proceedings of courts of justice is so great, that the occasional inconvenience to individuals arising from it must yield to the general good.

McHUGH J: But do you see what all that means? It means that the privilege is seen as having a totally different basis from that of qualified privilege. It is not without importance that from beginning to end of this judgment, which is generally regarded as the leading case at common law, that Toogood v Spyring is not referred to, neither is any question of duty or interest.

MS McCOLL: That is true, and we do not shirk from that, your Honour. We have tried to make the point, nevertheless, by the references we have given to the fact that while there are different elements, there is a common policy basis of both defences.

KIRBY J: I think you are right on that. I think there is a common policy basis and the fact that it is not referred to is simply the very definition of the way the common law develops. Judges with different knowledge and different interests, different expertise, will often just approach it in their own way, but the foundation will be much the same, namely, a balance of public interest.

MS McCOLL: It came out clearly in the passage from Perera v Peiris to which we have referred and one sees it again here on this page at about point 5 in the reference to Justice Lawrence’s observations in Wright that:

“though the publication of such proceedings may be to the disadvantage of the particular individual concerned, yet it is of vast importance to the public that the proceedings of courts of justice should be universally known. The general advantage to the country in having these proceedings made public, more than counterbalances the inconvenience to the private persons whose conduct may be the subject of such proceedings.” In Davison v Duncan, Lord Campbell says, “A fair account of what takes place in a court of justice is privileged. The reason is, that the balance of public benefit from publicity is great. It is of great consequence that the public should know what takes place in court; and the proceedings are under the control of the judges. The inconvenience, therefore, arising from the chance of injury to private character is infinitesimally small as compared to the convenience of publicity.” And Wightman J, says: “The only foundation for the exception is the superior benefit of the publicity of judicial proceedings which counterbalances the injury to individuals, though that at times may be great.”

KIRBY J: This may all need to be rethought in the age of the Internet, because now, by search engines, you can find court proceedings many years ago, and in the future it will be decades ago, that can be dredged up and people in their local communities can have things that were accurate enough and reported accurately but which have lost their currency, and yet that will be covered by the privilege.

MS McCOLL: But that would be no different from somebody disinterring a 20‑year‑old volume of the Commonwealth Law Reports and recounting what happened in some case.

KIRBY J: Well, you say it is no different but it is very different because now it is just with the touch of a finger.

GLEESON CJ: But the public interest in publicity for court proceedings is not because the public are wiser or any better informed as a result of knowing what judges do. It is because court proceedings are made “cleaner” by publicity.

MS McCOLL: The development, historically, of this defence was said in part to be to overcome the stain of the Star Chambers, where proceedings did not take place in public, and to cure that problem. Just briefly, I wanted to refer the Court to the decision in Kimber v The Press Association Limited [1893] 1 QB 65 where there was unanimity, but by that stage this principle to which we are referring at page 68, first in Lord Esher’s speech, that there was a “rule of law”. At the bottom of the page:

The rule of law is that, where there are judicial proceedings before a properly constituted judicial tribunal exercising its jurisdiction in open Court, then the publication, without malice, of a fair and accurate report of what takes place before that tribunal is privileged. Under certain circumstances that publication may be very hard upon the person to whom it is made to apply, but public policy requires that some hardship should be suffered by individuals rather than that judicial proceedings should be held in secret.

Picking up your Honour the Chief Justice’s point.

The common law, on the ground of public policy, recognizes that there may be greater danger to the public in allowing judicial proceedings to be held in secret than in suffering persons for a time to rest under an unfounded charge or suggestion.

To like effect there is a passage in the judgment of Lord Justice Lopes’ speech at page 73, and in Lord Justice Kay at page 75 where his Lordship referred to Lewis v Levy, and at the bottom of the page again:

such extreme importance that publicity should be given to all judicial proceedings ‑ ‑ ‑

GUMMOW J: Now, I have a note here of a Victorian decision, Smith v Harris [1996] 2 VR 335.

MS McCOLL: That was a case where proceedings were commenced in the Magistrates Court. Before there had been any hearing, the solicitor for the plaintiff, who I think was the secretary of a Victorian politician – Justice Hayne may recall the circumstances – took the statement of claim or whatever the initiating process, which contained fairly scurrilous allegations, and, whether he or she stood on the courtroom step or the like, communicated that to the press which naturally and enthusiastically reported all of the allegations. The question which as I recall Justice Byrne had to decide was whether that could be a report of court proceedings. There were some particular provisions in, I think, the Victorian Magistrates Act concerning whether or not you could have access to pleadings and the like. No doubt his Honour referred there, I am sure, to Kimber.

KIRBY J: Did he hold that that was governed by the protected report or privilege?

MS McCOLL: I think he ultimately held it was not, your Honour. I will check that over the luncheon adjournment. I am pretty sure he held that it was not but, as I say, it may well also have turned in part on I think it was section 4 of the relevant legislation.

Your Honours, I have already submitted that the defence is available, of fair protected report, no matter what the extent of publication and that that is an exceptional situation, a point which might well be made by reminding the Court of what was said in Lange v Australian Broadcasting Corporation at 189 CLR 520 where this Court was dealing with the exceptional circumstance where the defence of qualified privilege might be available to a publication to the world at large. At page 570 in the first full paragraph, referring to the defence of qualified privilege in the context of defamatory matters about government and political matters, this Court pointed out:

Only in exceptional cases has the common law recognised an interest or duty to publish defamatory matter to the general public.

Then, at page 572, picking up on the same point, again in the first full paragraph:

At common law, once an occasion of qualified privilege is found to exist, the privilege traditionally protects a communication made on that occasion unless the plaintiff is actuated by –

I think that must have been the defendant.

KIRBY J: This journal was not to the general public though, was it?

MS McCOLL: No, but I am just making the point, your Honour, about the exceptional nature of the defence of fair protected report by contrasting this decision, which was highlighting the exceptional circumstances in which a defence of qualified privilege might be attracted to a publication to the world at large. That should have read “unless the defendant”:

is actuated by malice . . . But, apart from few exceptional cases –

and reference was given to Adam v Ward and Loveday –

the common law categories of qualified privilege protect only occasions where defamatory matter is published to a limited number of recipients. If a publication is made to a large audience, a claim of qualified privilege at common law is rejected unless, exceptionally, the members of the audience all have an interest in knowing the truth. Publication beyond what was reasonably sufficient for the occasion of qualified privilege is unprotected. Because privileged occasions are ordinarily occasions of limited publication – more often than not occasions of publication to a single person – the common law has seen honesty of purpose in the publisher as the appropriate protection for individual reputation.

And then, at the end of that paragraph:

a test devised for situations where usually only one person receives the publication is unlikely to be appropriate when the publication is to tens of thousands, or more, of readers, listeners or viewers.

We would interpolate here that relevantly 900 people is certainly far more than the single person to which this Court was referring in that passage of Lange.

Your Honours, if I could just finish on the first issue. Those references, we submit, highlight the breadth of the defence of fair protected report and highlight what we would say is the greater interest in reports of judicial proceedings having to come under the rubric of the defence of fair protected report rather than any more narrow defence of qualified privilege, as was in fact the finding of the Court of Appeal here.

GLEESON CJ: How long do you think you will need to finish your argument?

MS McCOLL: Perhaps three‑quarters of an hour, your Honour.

GLEESON CJ: We will adjourn until 2.00 pm.

AT 12.44 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.02 PM:

GLEESON CJ: Yes, Ms McColl.

MS McCOLL: Thank you, your Honour. Just by way of housekeeping, can I just, in response, I think, to the question from Justice Kirby, say that looking at the decision in Smith v Harris over the luncheon adjournment, my recollection was fortunately accurate in all respects, save that I did not recall the name of the legislation. It was section 4 of the Wrongs Act and the publication was held not to attract common law qualified privilege or any statutory protection.

If I could turn then to the second issue which is whether or not qualified privilege could in any event be attracted by a publication of what might loosely be referred to as a trade journal of the nature of the matter complained of here, your Honours will recall that Justice Hodgson in concluding that the occasion was one of qualified privilege expressed himself in paragraph 32 of his judgment in terms that he had regard, which is at page 331 of the second volume, both to the fact that:

Occupational health and safety is a matter important for the common convenience and welfare of society –

to the fact that:

The respondent, having accepted subscriptions for a newsletter –

and that while a licence could not be created to defame, the existence of that subscription contract was relevant in the context of the public interest in a communication being made.

We submit that it was an incorrect approach and that while it might be accepted that the readers of the bulletin might have had an interest in Justice Merkel’s judgment on the cross‑claim, that was insufficient to establish an occasion of qualified privilege in the absence of the necessary reciprocity of duty and interest. His Honour also expressed his conclusion in terms of the duty to publish the newsletter rather than having regard to attaching the duty to the particular duty to communicate the information in question. We would submit that the duty had to be a duty to publish the actual matter complained of, not the journal in which it appeared, and that the fact that the bulletin was published on subscription could only at best establish a duty to publish the actual journal rather than the particular communication in question.

KIRBY J: I do not quite understand that. Does that mean a duty to publish what, the whole judgment?

MS McCOLL: No, it had to attach, your Honour, to the particular communication, namely the matter complained of, rather than just to the newsletter in general. His Honour’s decision was expressed in terms of the duty to publish the newsletter which flowed from, in his Honour’ view, the subscription contract, whereas the relevant duty for qualified privilege has to lie in the duty to publish the particular communication, so here, in this case, the article about the judgment.

KIRBY J: The whole article? Are you talking of the whole article or is the matter complained of simply the paragraph that you object to?

MS McCOLL: His Honour was referring to, and his Honour only found, that the duty flowed in relation to the cross‑claim itself, insofar as he referred to the principal proceedings. That was a matter which he said was not the subject of the duty his Honour identified, but was not then irrelevant for the reasons he then expressed. But here one had to have regard, in our submission, to the whole of what was published in that section of the newsletter and see whether the duty attached to that.

KIRBY J: It is no doubt a fault of my own, but I would like to get very, very clear whether in terms of principle what you are putting to the Court is that if you are in the paradigm of fair and accurate report, there is no room for qualified privilege at common law, or for that matter under the statute, end of question, or that if you are in the paradigm of fair and accurate report, there is still room for qualified privilege, but unless it is accurate, it will not engage qualified privilege. In other words, you lose it because of the quality of the publication.

MS McCOLL: We are in your Honour’s first paradigm, your Honour.

GUMMOW J: Whereabouts are you in your written submissions?

MS McCOLL: At this stage, your Honour, I am dealing with our second issue as to ‑ ‑ ‑

GUMMOW J: Paragraph?

MS McCOLL: In our written submissions?

GUMMOW J: Yes, paragraph? This point about the whole publication, is that made somewhere?

MS McCOLL: I am dealing with the matter which commences on page 14 of our written submissions, your Honour.

GUMMOW J: Yes. Now, the point you were just making, is that made there?

MS McCOLL: The particular point in response to Justice Kirby, or the particular ‑ ‑ ‑

GUMMOW J: No, just before that. You were talking about the whole article.

MS McCOLL: I do not think it found its way directly into the written argument, your Honour.

GUMMOW J: We had better know what it is precisely.

MS McCOLL: Is your Honour asking about the proposition that the duty had to be the duty to publish the information in the article about the Federal Court proceedings? That is our proposition, rather than a duty to publish the newsletter as a whole.

GUMMOW J: Yes.

MS McCOLL: I was going to take the Court briefly to Macintosh v Dun [1908] AC 390, which was the case to which his Honour Justice McHugh was referring this morning, which disqualified the early Dun & Bradstreet under one of its earlier names, from relying on a defence of qualified privilege in relation to a communication made pursuant to a contract to advise as to the creditworthiness of people engaged in commerce.

GUMMOW J: So you are on paragraph 80, are you, of your written submissions?

MS McCOLL: Yes, your Honour. The critical passage in the Privy Council’s decision appears at page 400 of their Honours’ decision, where in the first full paragraph they asked:

If, then, the proprietors of the Mercantile Agency are to be regarded as volunteers in supplying the information which they profess to have at their disposal, what is their motive? Is it a sense of duty? Certainly not. It is a matter of business with them. Their motive is self-interest. They carry on their trade, just as other traders do, in the hope and expectation of making a profit.

They then asked:

Is it in the interest of the community, is it for the welfare of society, that the protection which the law throws around communications made in legitimate self-defence, or from a bona fide sense of duty, should be extended to communications made from motives of self‑interest by persons who trade for profit in the characters of other people?

GUMMOW J: We can all read that. What do you say about Mr Reynolds’ treatment of that paragraph 69 of his submissions? You have to get down to tintacks.

MS McCOLL: What we said is that, when you look at the passages in Justice Hodgson’s decision, to which the respondent’s submissions refer and which are summarised on page 9 in paragraph 59 of the respondent’s submissions, really all of the matters insofar as they relate to the respondent relate to the contractual obligation to publish the newsletter and there are no particular matters other than the contract and the fact that matters relating to occupational health and safety are matters in which the recipients might be understood to have had an interest by virtue of their occupations. Once you leave aside the contract, then all you are left with, we submit, in relation to the respondent is the general interest to publish accurate reports of court proceedings and that Macintosh v Dun clearly establishes that the contract, which was the subscription contract here, could not be the foundation of the duty.

HEYDON J: But the defendant here could not be described as someone who traded for profit in the characters of other people, could he?

MS McCOLL: That is true, your Honour, and before Justice Gummow asked that last question I was going to draw attention to the fact that this decision did appear to turn, to an extent, on the Privy Council’s opinion about those who engage in that business, as might be gauged from what appears at the bottom of the paragraph to which I was just drawing the Court’s attention. They seemed to think that, in effect, the publisher in that case, Dun, The Mercantile Agency, might have gained its information in ways which might have been thought to be something which society should not sanction, in effect.

The point which is well made by the principle in Macintosh v Dun is that which I made this morning, which is that you cannot create a duty by engaging in a contract, whether of the nature of that in Macintosh v Dun or of the subscription contract which the respondent had here to provide this occupational health and safety duty. The duty which is the “common convenience and welfare of society” to which regard is had in determining whether a qualified privilege duty arises is one which is imposed by society, namely, what would right‑thinking people regard as whether or not there was a duty, not ‑ ‑ ‑

GUMMOW J: How do we find these creatures?

MS McCOLL: Well, they are the reasonable people who inhabit the streets of Phillip Street and George Street.

GUMMOW J: Mrs Thatcher said there was no such thing as society, and she had a point. She said there is no such thing as society.

CALLINAN J: Only families, I think.

GUMMOW J: These…..just get repeated.

GLEESON CJ: Well, “right‑thinking people” means people like me.

MS McCOLL: I have no doubt that your Honour is a right‑thinking member of society. Could I just turn briefly to the decision which Justice McHugh referred to this morning, De Buse v McCarthy. Could we hand up copies of that decision. I apologise for the size of the reproduction. It was a case where even a local council was found neither to have a duty or an interest to provide information to ratepayers. It was found not to attract a defence of qualified privilege when it published to its ratepayers and, indeed, throughout the libraries of the local borough, no doubt, information about a committee report concerning what it must be inferred was the theft, in fact, of petrol from one of the council’s depots. At page 164 in the Master of the Rolls’ speech, where his Honour dealt with Adam v Ward in a passage I think I have already drawn to the Court’s attention – at the bottom of that page 164, his Lordship said:

I cannot see that it can possibly be said that the council was under any duty to make that communication to the ratepayers.

Now, it is true this case does seem to have turned to a certain extent on the fact that the relevant investigation had not been concluded. As he then says:

At that stage the matter was, in a sense, sub judice, because the committee’s report by itself could have no practical value unless and until it had been considered by the council and the council had come to some decision on it.

McHUGH J: It is the passage at 166 that I had in mind.

MS McCOLL: I was going to get there, but I was just also going to point out he also said at about point 5 on page 165:

If I am right in thinking that there was no duty to make the communication to the ratepayers at that stage, was there an interest –

and again concluded that there was no interest as between the council and the ratepayers. Then at page 166, referred, indeed, to whether or not the ratepayers had an interest or duty to receive the communication, and said:

It is obvious that ratepayers are interested in the proper administration and safeguarding of their property and in the way in which their council conducts its business, but what I may call the internal working of the administrative machine and all the details of its domestic deliberations in a case of this kind, are things which I should have thought ratepayers are not in general interested in unless and until they emerge in the shape of some practical action or practical resolution.

KIRBY J: These are very narrow views and I must say reading now Macintosh v Dun where, with great deference to their Lordships, in 1908 they simply reversed the High Court of Australia, which had in turn referred to United States authorities. Admitting that there were no English authority on the point, they just said, “Well, that’s not the law of England”. In this case, in 1942, they take a very narrow view, as far as I am concerned. I will read these decisions but they do not state the common law of Australia as far as I am concerned. These are very antithetical to free expression, both Macintosh v Dun and also DeBuse.

MS McCOLL: Well, certainly Macintosh.

KIRBY J: They are English approaches to these issues. They are not Australian approaches.

MS McCOLL: Macintosh v Dun has never been reversed in Australia and the extent to which it is still applied can be seen from the fact that section 22(3) was thought necessary ‑ ‑ ‑

KIRBY J: That is because it was a Privy Council decision at a time when this Court was bound by the Privy Council, as it was for most of the century. These are English approaches to this area of the law which are very antithetical to free expression.

MS McCOLL: It does not detract nevertheless, we would submit, from the proposition which I advanced a moment ago in relation to Justice Heydon’s question as to the duty having to be imposed rather than self‑created. That is the fundamental principle which underlies Macintosh v Dun subject to the peculiarities of their views of those who traded in people’s reputations.

McHUGH J: But you have really got to get into the specifics. In a qualified privilege case there are three questions that have to be answered. The first is, did the defendant have a duty or interest to publish a communication on a matter of – I will leave it blank, whatever it happens to be, and applying it to this case – to any person who subscribed to its publication? Secondly, did those persons who received the communication from the defendant have a duty or interest to receive a communication on a matter of – blank? Unless both questions are answered in favour of the defendant, the defence fails. But then comes the important third question that you have to ask yourselves in these cases. Assuming that there is a duty or an interest, the final and ultimate question is, does the common welfare of society require that a defamatory publication by the defendant to those persons made in good faith ought to be protected whether or not its content is true or false?

Now, the proposition for which your opponent has to contend, it seems to me at the moment, is that if somebody publishes a publication of this nature to its subscribers and says, “Justice X’s decisions on matters of occupational health and safety are such that he is an unfit person to hold judicial office”, that is the subject of qualified protection, whether it be true or false, as long as the publication is made in good faith. The question is, does the common welfare of society require communications of that nature to be made? So you have to answer these three questions. What I feel frustrated about at the moment, Ms McColl, is that nobody seems to have defined with precision what is the particular interest that the subscribers had in receiving the communication, it is said in a general way, on occupational safety and health. Well, that enables you to defame anybody as long as it has some connection with that subject matter.

MS McCOLL: Well, perhaps your Honour might be assisted if we go back to the matter complained of and I just take you in some slightly greater detail through what was that passage or portion of the matter complained of which actually dealt with the occupational health and safety issue, because I think it might fairly be said it was that which attracted their Honours’ attention which they perhaps globally described as occupational health and safety which was a matter which they held was of particular interest. If I could take your Honours back to page 245 and seek to summarise it in this way. As we understand their Honours’ judgment, the matter of the particular interest and the way certainly we understand the respondent put its case was a particular interest in the issue which Justice Merkel had found against the cross-claimant was that it meant that material safety data sheets which inform people who deal with chemical substances in the workplace as to the relative safety or otherwise of those chemicals could be freely used so that even if there appeared to be a claim of copyright, the people at the coalface, as it were, should not regard themselves as limited in the way they used those material safety data sheets. So ‑ ‑ ‑

KIRBY J: Arguably that is a matter on which there would be an interest and the publication of which would be in the common welfare of society.

MS McCOLL: That is correct, your Honour. I am just seeking to explain to Justice McHugh how it was ‑ ‑ ‑

KIRBY J: Let us not just keep law cases as little secrets in the legal profession keeping them all to ourselves. I mean, the community who pays the salaries of judges has an interest to know what the judges are up to and deciding.

MS McCOLL: So, your Honour Justice McHugh, if you look on page 245 at the third paragraph where it said Mr Bialkower:

claimed the MSDS – the primary vehicle for providing chemical safety information to the workplace –

so that is the sort of information that people are getting. Then the court deals with the implied licence argument and so on. At page 246 in the passage ‑ ‑ ‑

McHUGH J: Let me tell you what sort of problems I see. Look at page 242, column 1. Now, there would seem to be defamatory statements made there about Transfield-Obayashi. It certainly arguably gives rise to an imputation that by reason of its lack of proper standards, it has been guilty of the death of at least one worker. Now, the question is, is that protected, whether it be true or false, simply because it deals with a matter of occupational health and safety?

MS McCOLL: We would submit, reading it reasonably speedily, it would not appear to be protected at all, your Honour. It seems to be really a report about a stop-work meeting and it is really in the nature of a news item one might find in the ‑ ‑ ‑

McHUGH J: Yes, but if the proposition is correct that as long as it is about occupational health and safety you have qualified privilege, then it must be protected. Now, your case may fail but it is very important, it seems to me, to get to the specifics.

MS McCOLL: I was trying to draw your Honours’ attention to the fact that the report we are dealing with is very specific in relation to the cross‑claim about the use of these material safety data sheets and it does appear to be that to which Justice Hodgson was referring, as I say, possibly in a more global and non-specific sense in terms of his conclusion at least that the recipients had an interest. It does not, as we submit, found the necessary duty on the part of the respondent but when one has regard, for example, to what is set out at page 246 in the first column, again a quote from his Honour’s decision at about line 30 that the order Mr Bialkower sought:

would have had the practical effect of limiting or impeding access to information which importers and manufacturers are under a duty of care to take proper steps to provide or make available to a workplace where their hazardous substances are used –

I mean, it is saying against our argument, your Honour, but that appears to give the judgment the benefit of the doubt, the matter relating to occupational health and safety which particularly attracted the court below in finding at least the relevant interest in recipients in receiving it. It seems to have had an influence also in Justice Hodgson finding the duty but, as we have already submitted, leaving aside the contract, there was no duty or interest, as we would put it, to publish this on the part of the respondent other than the interest in publishing accurate reports of court decisions. So the answer to your Honour’s, I think, second question which you posed in a qualified privilege context would be answered negatively to the respondent.

Then I was going to take the Court to Howe and McColough v Lees 11 CLR 361 which was the decision Justice Hodgson did refer to as providing a basis for the occasion of qualified privilege. That was a case more akin, we would submit, to whether qualified privilege was held to arise more in circumstances akin to members of a voluntary association. In this case it was an association of stock salesmen who carried on business who had an association with rules, they paid a membership fee no doubt and in effect what they did was inform each other if somebody had not paid for cattle which had been purchased through the yard and the particular case arose from a false report that a Mr Lees had failed to pay for one or more cattle which he had purchased. In that case it was held that the occasion was one which was privileged.

McHUGH J: Over the strong dissent of Justice Isaacs.

MS McCOLL: And over a very strong dissent of Justice Isaacs, which we referred to in our written submissions. At the same time it is clear, we would submit, from the judgments that what attracted the Court to the fact that this should be concluded to be an occasion of qualified privilege was the nature of the association – that it was in effect a society in which the members co‑operated for their mutual benefit, if I can put it that way, and that it was in all of their interests that they should receive this information concerning the creditworthiness of Mr Lees, albeit that on the particular occasion the information which was communicated was wrong.

GLEESON CJ: It sounds like a list that the Bar used to conduct.

MS McCOLL: In fact I think it is Justice Isaacs or it may be Justice Higgins refers to the blacklist, your Honour. It should have given us some comfort, instead of which it actually was abolished, but only comparatively recently.

McHUGH J: And on other grounds, was it not? It had nothing to do with the law of defamation, did it?

MS McCOLL: We were always conscious of all our potential Achilles heels, your Honour. At page 368 in the Chief Justice’s decision, his Honour referred to the by now well‑worn passage which I will not trouble the Court with again, but his Honour referred to Toogood v Spyring, and points out at the top of page 369 that in his view the term “moral duty” referred to by Baron Parke was:

not used in a sense implying that a man who failed to make the communications . . . would necessarily be regarded . . . as open to censure, but in the sense implying that it as made on an occasion on which a man who desired to do his duty to his neighbour would reasonably believe that he ought to make it. It is obviously impossible to lay down a priori an exhaustive list of such occasions.

In response to a submission which had been made by counsel for the respondent I think that to attract the qualified privilege in this particular case a common interest had to be identified, his Honour preferred the expression of a “community of interest” as being more accurate. At the bottom of the page in expanding on that proposition his Honour said:

The term “community of interest” does not connote a joint pecuniary interest in property. Any legitimate object for the exercise of human faculties pursued by several persons in association with one another may be sufficient to establish community of interest. Again, “interest” does not mean an interest in the particular subject matter as to which the communication is made, but an interest in knowing the fact communicated, in other words, an interest in the subject matter to which the communication is relevant, as for instance the solvency of a probable customer.

At the top of page 370:

Having regard to the nature of the business conducted by the members of the Bendigo association, I think that they were all mutually interested in knowing whether probable bidders at the auction sales were persons to whom the short credit allowed might be safely given.

In the middle of the page his Honour referred to whether or not the relevant duty was to be found and said that:

With regard to duty, I am of the opinion that, when parties have made an agreement which is not unlawful with regard to a matter in which they have a community of interest, it is their duty, in the relevant sense of the word, and quite irrespective of any technical rules as to the consideration for an agreement to keep their promises. Any honourable man would regard himself as bound to do so.

Then at the bottom of the page, his Honour said:

But it is not necessary to assign the occasion to either class to the exclusion of the other.

On page 371, his Honour distinguished Macintosh v Dun and said at about point 2 that the issue upon which they there found the qualified privilege not to arise:

was a question of fact, not of law . . . that the agreement under which the defendant was bound to make the communication was contrary to public policy.

GLEESON CJ: Ms McColl, if CCH in their service informing subscribers about the outcome of tax appeals as a result of some carelessness misreported a court decision in a way that defamed somebody and you applied the law of qualified privilege to an action brought by the person who was defamed, how would that work?

MS McCOLL: In fact one of the very old cases, your Honour, was almost exactly that situation. It was dealt with under the defence of fair reported judicial proceedings – the case, the name of which will come to my mind in a moment – and it was found that it could not be protected as privileged. In other words, if you misreport, even in a journal dedicated to reporting legal matters, if you misreport the court proceeding, then you will be found liable. Can I just take that on notice, your Honour, and I will give you the name of that case shortly. That would be how we submit that question would be answered in that context. It was a decision in Blake v Stevens 176 ER 544.

GLEESON CJ: Thank you.

MS McCOLL: Just briefly dealing with the decision of Justice Isaacs in Howe, if I could take the Court to page 388, perhaps just to point out that at 386 his Honour did think that the law on the point before the Court was contained in Macintosh v Dun which his Honour pointed out was a:

decision not only of the ultimate Court of Appeal, but also of a personally powerful Board.

Then at page 388, in dealing with the appellant’s submission:

That the agreement –

between the members of the association –

was a standing request for information, and therefore, if given bona fide, it is protected. It seems to me that the proposition is altogether too broad. Admittedly, in the whole range of British law no precedent can be found to support it.

Then:

Not every request avails to create a duty –

And he referred to:

Macintosh v Dun (2) is most distinct that a reply to a standing request – or even ‑ ‑ ‑

GUMMOW J: Sir Samuel Griffith did not think much of Macintosh v Dun. He says so at 371.

McHUGH J: Well, he was reversed in Macintosh v Dun. That is why he did not think much of it.

KIRBY J: It is because he was applying an Australian standard, which was influenced by his knowledge of the American case.

MS McCOLL: But the point that I really wanted to draw the Court’s attention to here is the passage which I have referred to at least twice today, I think this afternoon and this morning, but his Honour then went on to say:

The essence of the social and moral duty is that its creation is not voluntary. It does not arise by reason of an agreement on the part of the individual; it is one imposed on him, without his will, and either by the law or by the general sense of the community.

And down in the paragraph dealing with Dickeson v Hilliard, where his Honour refers to the passage in Baron Pollock’s decision where he says:

“Persons are not allowed by their own acts to constitute an occasion privileged which would otherwise not be privileged, having regard to the relations which naturally exist between them.” In effect the appellants’ case as to duty is that, having agreed that they shall be privileged, therefore they are.

So that was his Honour’s approach to the matter and one can find in similar terms in Justice Higgins’ decision at page 393 at the bottom of the page, where his Honour says:

what about the defendants? They had contracted to give the information; but a man cannot, by contracting to supply information which he ought not (apart from the contract) to supply, create an occasion of privilege.

Now, we do not say here, as I have already probably said too many times, that aliter the subscription contract, the respondent could not have communicated this information, but what we do say they would have been doing in those circumstances was communicating it pursuant to just the general interest to report court proceedings. A similar point was made again by his Honour on page 394:

Moreover, though we cannot allow the interest to be manufactured by the agreement, although the interest must exist aliunde, yet we may take into account the agreement as part of the circumstances, in considering whether the occasion is privileged.

But, as we have submitted, McColough is a very different case from this, where there was no mutuality between the respondent and the recipients of the matter complained of. The only relationship which existed, existed by reason of the recipients’ subscription to the bulletin in question, save for their general relationship as members of society.

So, your Honours, we would submit that the Court of Appeal was incorrect in identifying in its identification of a duty that there was therefore not the necessary reciprocity of duty and interest which is essential to qualified privilege and that one did not even get to Justice McHugh’s third question, but that if one did get to ‑ ‑ ‑

McHUGH J: Well, the third question ordinarily flows automatically from the first two, but that is not always the case.

MS McCOLL: And we submit if you did get to it for all the reasons which I think I have probably elaborated ‑ ‑ ‑

KIRBY J: Justice Rolfe was against you on this point, was he not?

MS McCOLL: Justice Rolfe was, yes, your Honour.

KIRBY J: So you had unanimous conclusions against you below on these points that you are arguing now?

MS McCOLL: That is correct, but I am never daunted, your Honour. Could I then turn to the third issue, namely when is material not itself privileged so relevant to privileged material as to make the form of the subject of the defence of qualified privilege, and remind the Court that there was just was no controversy below, as we certainly read the judgments, that if the portion dealing with section 52 had been published alone in this bulletin, it would not have attracted a finding of duty and interest. So, in order to satisfy or attract the protection afforded by the defence of qualified privilege, it had to be found that that defamatory portion was relevant to the occasion.

What we submit, with respect, is that the majority - because we did succeed at least with acting Justice Rolfe on this occasion - with respect, took what we would submit was a “form over substance” approach to this issue and said because the principal proceedings were really what triggered the Federal Court proceedings and the main part of the bulletin on this topic dealt with the cross‑claim, it was not irrelevant to look at the fact that principal proceedings had been what led to the cross‑claim. Justice Sheller and Justice Hodgson in effect applied a test of whether the matter was sufficiently connected or was germane and reasonably appropriate, both being expressions which one way or the other found their origin in the decision in Adam v Ward and said to put it in context - it was sufficiently relevant to put it in context to report the section 52 claim.

We would submit that that was not the correct approach, that the correct approach was to look at the matter complained of as a whole and to apply what Lord Finlay said in Adam v Ward and which, as I think I said this morning, had been accepted by Justice Brennan as reflecting the law of Australia in Bellino 185 CLR, starting at page 201, at the bottom of that page, where his Honour looked at:

A particular problem arises when the matter complained of is merely a part of a wider publication, the overall subject of which is a subject of public interest ‑

and referred to the consideration of the problem in Adam v Ward. At point 2 on page 202, having referred to Lord Finlay’s speech in Adam v Ward, pointed out that:

The “extraneous matter” may fail to gain protection for either of two reasons: the publication of the defamatory matter may be held to fall outside the occasion of qualified privilege ‑

or it may go to malice. There is then a very lengthy extract from Lord Dunedin’s speech in Adam v Ward, the effect of which is that on Lord Dunedin’s approach the matter of extraneous material, unless totally unconnected to the occasion of privilege, Lord Dunedin would have it go only to the question of whether or not malice was established. At page 203 Chief Justice Brennan pointed out at about point 8:

In Australia, Lord Finlay’s analysis appears to have commanded assent in Code jurisdictions as well as at common law ‑

and at the bottom of the page:

In other words, the criterion of relevance which determines whether ‑

then his Honour then referred to actual tests for section 377 of the Queensland Code.

But critically we would submit that the way the Court should have approached the issue of relevance here was to look at the connection to determine whether or not the publication of the defamatory matter was within the occasion at all. Once you were in that territory, then you had that stumbling block that the law is - where you have an inaccurate report of court proceedings, you just never have an occasion of protected report apply at all. That was the approach their Honours should have taken to deal with this issue of relevance so that you never got to the approach their Honours took in terms of in effect finding the occasion of qualified privilege in relation to the report of a cross-claim and then considering whether the defamatory matter was sufficiently connected with that. As Justice Rolfe said, the incorrect publication in this case was irrelevant to the essential thrust of the matter complained of in relation to the cross-claim. We would submit that substantive approach which his Honour took was the correct approach.

Your Honours, if I could then turn briefly to the policy matters we raise in our written submissions, we have made a point by reference to Sullivan v Moody and the fact that, in our submission, acceptance of the approach taken below, in other words, allowing the defence of qualified privilege, the way the defence of fair protected report would not be available would impair the proper application of the defence of fair protected report ‑ ‑ ‑

HEYDON J: This presumably goes back to issue one, does it, this reasoning?

MS McCOLL: It does, your Honour, but we would submit it is a policy issue which underlies in particular the first two issues because it runs against the qualified privilege point and supports our first issue.

Could I just take the Court briefly to Wake v John Fairfax [1973] 1 NSWLR which we put on our revised list of authorities yesterday and we also included it in that bundle of materials we sent up. As I said, it is at the back of that bundle of materials under tab 6, which was a case which was concerned with whether or not the, in effect, protected report defence could be attracted to a report of proceedings of a greyhound racing tribunal. The passage to which I wish to draw the Court’s attention is at page 50D in a joint judgment of the Court of Appeal where their Honours said:

Qualified privilege has been accorded by common law and statute to the reporting of certain defamatory statements of others. This means that the publisher is relieved of the burden of justifying the defamatory imputations involved. All he needs to show in the first instance is that he has reported the matter fairly and that the publication purports to be a report. Of course, if it is adopted as the republisher’s own statement with or without attribution, the defence as to protected reports does not avail and justification may be necessary to defend it. It seems to us that, in a case where there is no qualified privilege to report or repeat the defamatory statements of others, the whole cohesion of the law of defamation would be destroyed, if it were permissible merely to plead and prove that the defamatory statement was made by another; that this fact was stated in the matter complained of and that the defamatory imputation was not adopted or affirmed. The law as to qualified protection of the reports of certain designated matters would be largely if not wholly redundant.

So that, we would submit, is one recognition of what one might conveniently call the internal coherence of the law proposition.

To like effect is a passage in Justice McHugh’s decision in Stephens 182 CLR 267 where at about point 2 his Honour said:

if the doctrine of qualified privilege at common law was extended beyond the existing categories to cover the publication to the general public of bare defamatory comment made by a person with a special knowledge of a subject of public interest, it would render the defence of fair comment in such a situation largely, if not entirely, superfluous. If the defence of fair comment or the existing categories of qualified privilege do not protect the publication of a bare defamatory comment, it is difficult to see how the public interest is served by extending the defence of qualified privilege to protect that comment.

So that, we would submit, would be another illustration of the application of our policy point in relation to the coherence of the law of defamation. Your Honours, we sent up that material concerning the United States which we have referred to briefly in the final paragraph of our written submissions. I did not want to take the Court to anything in particular. We just thought it would be convenient if the Court had that material. It does confirm our submission in paragraph 108 that the law of the United States is substantially the same.

If I might just refer the Court very briefly to the Supreme Court’s decision under tab 5 in Time v Firestone, just to say that the particular passage there which appears to be important is at page 167 in the volume, where Justice Rehnquist refused to extend the Sullivan defence to cover reports of court proceedings. The particular passage appears at about point 6 in the paragraph:

It may be argued that there is still room for application ‑ ‑ ‑

McHUGH J: What page is this, Ms McColl?

MS McCOLL: 167 of the volume of materials. Does your Honour have that?

McHUGH J: Yes, thank you.

MS McCOLL: The last full paragraph, in effect, where he was dealing with the argument about extending the Sullivan defence:

It may be argued that there is still room for application of the New York Times protections to more narrowly focused reports of what actually transpires in the courtroom. But even so narrowed, the suggested privilege is simply too broad. Imposing upon the law of

private defamation the rather drastic limitations worked by New York Times cannot be justified by generalized references to the public interest in reports of judicial proceedings.

Then his Honour went on to say at about point 9:

There appears little reason why individuals should substantially forfeit that degree of protection which the law of defamation would otherwise afford them simply by virtue of their being drawn into a courtroom. The public interest in accurate reports of judicial proceedings is substantially protected by Cox Broadcasting Co. As to inaccurate and defamatory reports of facts, matters deserving no First Amendment protection, we think Gertz provides an adequate safeguard –

and so on. The only final matter I wish to deal with is that the Court may have noted in the orders sought, orders 2 and 3 are sought in the alternative, and just to say that, were we to be successful, we would press for order 2, namely, that the verdict in favour of the respondent be set aside and judgment be entered in the amount which Justice Davies would have awarded if he had been wrong in his decision on qualified privilege. May the Court please.

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

MR REYNOLDS: If your Honours please. Can I deal with three points which Ms McColl has raised in her submissions in this order: first of all, what I will call the “inaccurate report” issues; second of all, the issue of whether there is an occasion of qualified privilege here; and thirdly, with the issue of what I shall call “relevance”.

Can I begin then with the proposition that my learned friend has put right to the very forefront of her submissions. It is varied a little in its form but I submit that essentially what she has been saying is this, that a publication can never be the subject of qualified privilege based on duty and interest if it is a report of court proceedings which contains even a single inaccuracy in a matter of substance. That, as I understand it, is the proposition which she advances.

In my submission, that is a very, very large proposition to sustain, and I say that for several reasons. First of all, that is a formulation that uses the word “never”. Your Honour Justice Kirby took this up with my friend and described the argument as an absolute rule. That is exactly what it is, an absolute rule which admits of absolutely no qualification, no matter what the circumstances are, no matter ‑ ‑ ‑

KIRBY J: Except that in its formulation in a matter of substance there is room for a difference of view as to whether it is a matter of substance or not.

MR REYNOLDS: But it is, in its terms, an absolute proposition, no matter how great the duty in the publisher, no matter how great the interest or the duty in the recipient to receive it. Second of all, as I have described it, it is based upon even a single inaccuracy in a matter of substance. Your Honours have noted the form of the order which Justice Merkel made in this case and I submit that there is no inaccuracy of substance in describing the meaning of the word “published”. The order in terms says that the relevant respondent published or caused to be published, and as the judge said, there was no difference…..

GLEESON CJ: You seem to have gone off the air.

MR REYNOLDS: Your Honours, I must say I have been able to hear only about ‑ ‑ ‑

GLEESON CJ: You are on the air again.

MR REYNOLDS: ‑ ‑ ‑ half of what your Honours have been saying.

KIRBY J: Do not say that, or it will be said that you are going deaf.

MR REYNOLDS: Or that there has been a breach of natural justice.

KIRBY J: It has been said of me.

GUMMOW J: More than once.

KIRBY J: Every time I mention a difficulty with the microphone system, I am alleged to be going deaf, but I am only deaf to some things.

MR REYNOLDS: I saw a transcript the other day where your Honour Justice McHugh said that counsel were not allowed to ask questions of a bench, but I would like to ask am I on the air now?

GLEESON CJ: You are.

MR REYNOLDS: Thank you, your Honour. The proposition depends even, as here, on this single inaccuracy.

McHUGH J: May it not depend upon how you define the interest? I have to tell you at the moment I have a strong impression that this whole question of the subject matter of the occasion has been misconceived and the case has got not the slightest thing to do, except perhaps tangentially, with occupational safety, and that the real interests are these: would the interests of the subscribers be affected by knowing, one, that Bialkower had not adequately shown copyright, that Justice Merkel had said that courts should not prevent the supply of information that is required for safety‑related purposes, and perhaps one or two other things. But that is what this case is about, is not it?

MR REYNOLDS: Yes, it is.

McHUGH J: I am glad to hear you say that because ‑ ‑ ‑

MR REYNOLDS: I am going to submit in due course – and if your Honour would like me to do so now, I will do it now ‑ ‑ ‑

McHUGH J: No, you take your time.

MR REYNOLDS: ‑ ‑ ‑ that there is only one issue in this case, and at a later point in my submission I will attempt to identify it, but my learned friend ‑ ‑ ‑

HAYNE J: Leaving us in suspense in the meantime, will you, Mr Reynolds? We will get to it.

MR REYNOLDS: I do not want your Honours to think about the point for half an hour before I get to it.

HAYNE J: Frankness in an advocate is always admirable, Mr Reynolds.

MR REYNOLDS: Thank you, your Honour, but in deference to my learned friend’s argument about this principle that she spent the greater portion of the day articulating, I would like to devote a few brief observations directed to that, but I will not be very long about it.

The third matter that I wanted to emphasise - and I have really said it before and I will mention it only briefly - is that her argument assumes that the relevant duty and interest can be found and also that the publication is not malicious, that is in the way that your Honour the Chief Justice put it to her, that all of the requirements of the defence of qualified privilege based on duty and interest are made out.

There are also some findings that I would like to take your Honours very, very briefly to in the appeal books. The first is at page 303 at about line 20 where your Honours find a finding of good faith, so my friend’s proposition assumes also that the publication is in good faith. At the bottom of page 303 over to 304:

that the journalist fairly summed up Merkel J’s judgment by using the terms which he did.

KIRBY J: That is not entirely true, is it, because the judge did not use the terms of Mr Bashford personally?

MR REYNOLDS: No, but the point that I am trying to underline, perhaps too obliquely, is that on the facts, what this case is about is about the omission of two contractions, “Pty” first and, second of all, “Ltd”, or, put even more favourably to my client, “P/L”. If that had been in there we would not be here now.

KIRBY J: No, not quite; you have left out “Consulting”.

MR REYNOLDS: Your Honour, I submit that would not have been an error of substance and that is the point that I am trying to make.

CALLINAN J: Mr Reynolds, you can think of a good policy reason for insisting upon strict accuracy in respect of court reports and that is because the defence is not designed simply to relate to judgments, it can relate to the proceedings generally. What people say in court is not actionable against them. Also, the defence applies to parliamentary proceedings and dreadful things are said about people in Parliament, so that there might be a very, very strong reason for insisting upon a very high degree of accuracy in relation to court reports, whether you are talking about fair report of proceedings or whether you are talking about, if it is available, qualified privilege.

MR REYNOLDS: Your Honour, with respect, we agree with that. Where we are talking about most publications, of course that is right. Where we are talking about publications in the media or publications to the public generally, of course I cannot argue with your Honour. One of the problems that the media has had in this area over the years is that they have never been able to establish a relevant duty and interest in a publication, for example, involving a court report. The point about this case is that it is essentially a private publication to a very small number of subscribers and that is what I submit makes it different from all of the other cases which the courts have looked at over the years.

CALLINAN J: They might have a greater interest as a matter of policy in strict accuracy than the members of the public might have in a report of a court case. It seems to me that that is not an argument in justification of inaccuracy, assuming that there is inaccuracy. It is an argument against it, I would have thought.

MR REYNOLDS: Your Honour, one of the difficulties about the law of qualified privilege, from my learned friend’s point of view, is that there are dozens of cases which underline the proposition that qualified privilege is all about inaccuracies. So that what we submit essentially is where the requisite duty and interest can be shown, then provided that the inaccuracy is not a malicious inaccuracy then the public interest is made out because those requirements of the defence have themselves been made out.

CALLINAN J: Leaving aside cases from which malice can be inferred from the inaccuracy or the degree of inaccuracy itself.

MR REYNOLDS: Indeed. Your Honours should be clear about this, that there is no suggestion in this case that there is any malice on the part of my client.

HAYNE J: But the relevant premise for the debate is the jury’s finding, is it not?

MR REYNOLDS: Your Honour, in the State of New South Wales these issues about qualified privilege were dealt with exclusively by the judge. All defences ‑ ‑ ‑

HAYNE J: I understand that, but is the premise for that debate that the jury has found that the imputation identified was conveyed?

MR REYNOLDS: Yes, your Honour.

HAYNE J: And that cannot be now controverted.

MR REYNOLDS: No, and indeed I do not attempt to do so. Can I pick up, just to try and illustrate the breadth of a proposition that my learned friend advances, by picking up on an example that your Honour Justice McHugh put to her in argument, which is in substance identical to an example that Justice Hodgson gave in his judgment. Can I give a couple of other examples to illustrate the difficulty, I submit, of my friend’s proposition.

Can I take two well‑known categories of qualified privilege. The first example I want to give relates to what I will call a reply to an attack. As your Honours appreciate, that is one of the best known categories of qualified privilege. Can I use this example. If one assumes that there was a meeting of one of the State Bar Associations presided over by the President of the relevant Bar Association and one of the members, one of the barristers, got up and said that he wanted to raise a matter with the meeting. He wanted to assert that the President was not a fit and proper person to hold the office of President of the Association. One assumes that the barrister was allowed to raise that matter, and that he wished to draw the members’ attention to what had occurred in a particular court case. He attacked the President and said that he was a disgrace to the profession as a result of what had happened in that court case which, let us assume, took place over a single day.

Let us also assume that the President responded to that attack immediately and told his attacker that the facts as he has stated them as to what occurred in the courtroom on that day were incorrect. Let it also be assumed that in describing what the facts were, the President misstated the names of the parties because, for example, he said that the name of the case was McKain v RW Miller, not McKain v RW Miller(SA)Pty Ltd, or he said the name of the case was Hedley Byrne v Heller instead of Hedley Byrne & Co Ltd et cetera, or he said that the name of the case was Pfeiffer v Rogerson whereas the real name of the case is Pfeiffer and something Ltd v Rogerson.

The effect of my learned friend’s argument is that that quintessential example of qualified privilege would fall outside the occasion by reason of one fact and that is because of the substantial inaccuracy involved in it, namely, the misnomer of the relevant party.

McHUGH J: Your argument on this point can be accepted, but it does not seem to me to deal with the real issue in the case. In the illustration you gave, as in the illustration I gave during argument, there is an occasion and the communication is about, in the illustration I gave, the character of a person and the occasion was communicating information about the character of a person to a potential employer. Now, it seems to me at the moment that the fact that you may inadvertently in pursuing that duty mistakenly refer to the facts of a court case is neither here nor there. That is why I wanted to ask you at the beginning of the case what is the interest here. It may be that the only interest here is in the subscribers’ interest in receiving information about Bialkower’s court case or about what Justice Merkel said about courts should not prevent the supply of information concerning safety matters. Now, if they are the only interests, then the case may be very different. It may be that in that situation public interest says that you must have a fair and accurate report and that you cannot have qualified privilege because your whole interest is about receiving information about what happened in a court.

MR REYNOLDS: Your Honour, could I say three things about that. First of all, insofar as your Honour raises the question of interest, that has been conceded in the written submissions, the interest on the part of the recipients. Secondly ‑ ‑ ‑

McHUGH J: It has to be defined though.

MR REYNOLDS: Your Honour, I will be attempting to do so. My second point is in the second portion of my submissions I will be attempting to take up what your Honour said. The third point is this, that your Honour has touched in that formulation obliquely on what I will call the common convenience issue and I will be dealing, I hope, with that in a moment. Can I just complete my submission on examples by giving one other category of example which is ‑ ‑ ‑

KIRBY J: You have to postulate in the case you just raised that you are sued by Hedley Byrne v Heller or by somebody who has an interest to assert that they have been defamed by what you said. It is not that the president will lose the qualified privilege of the occasion vis-à-vis all the others simply because of some mistake.

MR REYNOLDS: Yes, well, that is our proposition, that my friend’s proposition assumes that the example that I just gave would not be an occasion of qualified privilege because of the misnomer in relation to one of the parties. The other example that I wanted to give, again I have tried ‑ ‑ ‑

McHUGH J: But taking up the point that Justice Kirby made, what qualified privilege would you have in relation to Hedley Byrne? Your only privilege would be fair report.

MR REYNOLDS: Your Honour, I am assuming in the example that I gave that the president of the association knows the ‑ ‑ ‑

McHUGH J: But who is the plaintiff against whom you want to plead qualified privilege?

MR REYNOLDS: Well, in the example that I gave, let us say the defendant to the proceedings because the president, in replying to the attack, mentions the name of the case and describes an individual rather than a corporate defendant and then accurately states what the judge found in relation to the corporate defendant ‑ ‑ ‑

McHUGH J: Yes, but who is the plaintiff in the action? Who is suing the president for his false statement?

MR REYNOLDS: If we go back to the example, assume that he would have described the case or the name of the case as Smith v R.A. Bashford and described what the judge had found in relation to the defendant’s conduct, for example, misleading conduct, and the imputation was that R.A. Bashford had engaged in misleading conduct. So to answer your Honour’s question, in the example the plaintiff would be R.A. Bashford, picking up on the fact that there was an inaccuracy in the way the president had stated the issues in the case because of ‑ ‑ ‑

McHUGH J: I do not want to delay you but, with great respect, it does not seem to me it has anything to do with the case. I do not think there is any privilege between the president and Bashford. Your only defence would be fair report.

MR REYNOLDS: Your Honour, my submission ‑ ‑ ‑

McHUGH J: You are not replying to an attack on Bashford, you are replying to an attack by some other member.

MR REYNOLDS: Well, your Honour, I would submit that provided it is a reply to an attack and can be so categorised that it would be an occasion of qualified privilege.

McHUGH J: What, that you can defame anybody? Not merely the person you are replying to, but anybody?

MR REYNOLDS: Provided that it is part of the reply to the attack, that is my proposition, yes.

McHUGH J: Well, that is an extraordinary proposition, Mr Reynolds.

MR REYNOLDS: Your Honour, let me move on then and give another example. Assume that there is a domestic tribunal and it does not have for counsel and the presiding members a defence of absolute privilege and assume that there is a discussion between the presiding member and counsel appearing before this particular tribunal about a particular case in which they were both involved, because that is relevant to the discussion of, let us say, the particular rule in the Greyhound Racing Tribunal, and both the presiding member and counsel make statements as to what occurred in that particular case. Counsel puts submissions about it and the presiding member states his recollection. Both of them do so in a way that is, to some extent, inaccurate.

Now, the effect of my learned friend’s submission is what would otherwise be a well‑established category of qualified privilege fails simply by reason of the inaccuracy in their remarks. That is why I submit that this proposition that my friend articulates is way too broad.

I wanted to say a couple of other things about my friend’s proposition. One of them I have already mentioned, and that is that there are many, many cases that underline the proposition that qualified privilege is all about publications which contain inaccuracies. My learned friend does not dispute that in her submissions. The effect of her submissions is that any statement in relation to court proceedings, no matter whether there is a duty or an interest, is such that not even a single inaccuracy, not even a single inaccurate remark, can be made about it. We submit that that, as I say, underlines the breadth of the proposition advanced.

KIRBY J: She does not have to go that far, because she is dealing with this particular case and says that the identification of the parties is quite a significant fact and it is a most material matter and that if you get that wrong you are just focusing on the wrong person, therefore you step outside of the privilege that the law accords to you. It is a matter of substance.

MR REYNOLDS: Yes, but my learned friend concedes that in respect of all other forms of publication a defence of qualified privilege can obtain, notwithstanding inaccuracies, and multiple inaccuracies. But as soon as the speaker touches upon a report of court proceedings that means that a single inaccuracy in that statement means that the whole defence goes out the window. That is what I submit is a big difficulty in this argument.

CALLINAN J: It might depend on the nature of the inaccuracy, perhaps, Mr Reynolds.

MR REYNOLDS: Well, she has used the example, which is applicable in this case, of a single inaccuracy on a matter of substance.

KIRBY J: That is why I did not understand why Ms McColl embraced the alternative paradigm view. I can understand a view – and this, I think, is your case – that you have the fair and accurate report but you also have qualified privilege and, if you can find it, absolute privilege and fair comment and all the other defences. But she says, no, when it is in the paradigm of fair report that is it – you have just got to fit within that. It does not seem to fit within the structure of the Defamation Act.

MR REYNOLDS: That is the other matter that I wanted to underline, and my friend fairly raises with your Honours, that these defences are independent - this Court has stated so - they are separate. If they are separate and independent defences with their own elements, then why does one read down or read up the requirements of qualified privilege in a particular situation simply because one of the elements of the defence of fair and accurate report is missing? That is at the heart of our argument, that my learned friend would have to articulate a very clear reason why that is the case and we submit ‑ ‑ ‑

KIRBY J: Well, I suppose there is a common principle. After all, this grew out of the common law. The judges were seeking with different categories to express in essence what is for the good of society in this balance between individual reputation and publication and therefore there is room for common ground, it seems to me, and, as I understand an alternative argument, it is that the qualified privilege is lost because it is not for the good of society to have – there is no duty to publish an inaccuracy in a matter so fundamental as the identification of a party.

MR REYNOLDS: That brings me to the question that Justice McHugh raised earlier, which is what I will call the common convenience point. As I understood it, my friend submitted that common convenience requires that any report of court proceedings be accurate and that there can never be any common convenience in an inaccurate report. That was the proposition, as I understood it.

That means again that one has to contrast two categories of information. One is reports of court proceedings and the other is any form of discussion other than that. In the second category, again it is well established that multiple inaccuracies may be for the common convenience and welfare of society if there is the requisite duty and interest, but my learned friend’s submission seeks to elevate a proposition that where court reports are concerned, a single inaccuracy is fatal.

Can I approach this question of common convenience in a couple of ways: first of all, to concede as a given the formulation which your Honour Justice McHugh put to my friend earlier. That was, as I understood it, that the defendant in a qualified privilege case based upon duty and interest must first establish that there is a duty.

GUMMOW J: Or interest.

MR REYNOLDS: Or interest in the publisher. Second of all, that there is a duty or interest in the recipient; and thirdly, show that the publication is for the common convenience and welfare of society in the circumstances.

KIRBY J: Could I just put a footnote there, that that is the link with protected report because, as the cases say, it is deemed to be in the common interest of society that you have fair and accurate reports of courts and of Parliament. So there is the link. I personally, at the moment at least, accept your proposition that these are alternatives, but they are not completely closed categories.

MR REYNOLDS: Your Honour, I understand that is the way my learned friend puts the argument and what I want to try and do fairly briefly is try and show why that is wrong as a matter of principle or wrong, if you like, as a syllogism.

CALLINAN J: Mr Reynolds, section 11 means that they both must be available, does it not?

MR REYNOLDS: We accept that.

CALLINAN J: The only question I suppose then is, is qualified privilege in substance in some way different when it relates to a report of a court proceeding? It may or may not be, but that is the argument, is it not?

MR REYNOLDS: That is the argument. Not just different, your Honour, but enormously different, because in one universe one has outside of court proceedings all sorts of inaccuracies as long as they are not malicious, but once the publisher moves into the area about talking about court proceedings a single inaccuracy means that that is the end of the defence. There is no longer any occasion of qualified privilege even if there is a relevant duty and interest.

CALLINAN J: Is that right? Could you not have some inaccuracies that are so inaccurate that you lose relevance?

MR REYNOLDS: Yes, your Honour is quite right. I am assuming that there is no malice.

CALLINAN J: Well, that is a different matter again. It still has to be relative to the subject matter.

MR REYNOLDS: I see.

CALLINAN J: They can be mutually exclusive requirements.

MR REYNOLDS: Your Honour, I accept the correction. Your Honour is quite right, that there could be a remark which is so far away from the occasion that it would not be part of the occasion and I accept that.

The point I want to try and get to is to try and answer your Honour Justice Kirby’s question as directly as I can, which is this link that my learned friend tries to draw between these two defences using the words “common convenience” and “public interest”. I submit that if one surveys the law of defamation, certainly the common law of defamation and in particular the defences, there are a whole series of situations where the judges over the years have recognised certain defences as being in the public interest. The reason they have done so is because they have looked in the relevant sense at a balance between, on the one hand, the interest that an individual has in his reputation and, on the other hand, the interest usually described as the free speech interest.

In each of these defences the judges have formulated various requirements and if those requirements are made out then the judges have said that it is, in effect, in the public interest to recognise that if those requirements are made out the relevant defamation is not actionable. It is in that sense that the notion of public interest hovers over this inquiry, that is, that relevantly both the defence of qualified privilege and the defence of fair and accurate report are manifestations of the public interest, in the sense that if the elements of either defence are made out then the judges have held that it is in the public interest to recognise that the defamation is not actionable.

The key difficulty, I submit, with my friend’s argument is a matter that your Honour the Chief Justice again focused upon earlier in argument, and that is that essentially my friend says that the public interest exemplified by the defence of qualified privilege can never be made out unless this particular element in the defence of fair and accurate report is also made out. That is the essential difficulty that we say her argument involves. Simply to talk about the public interest and to say that the public interest underlines both of these defences, I submit, does not get my friend home. There is the very difficult question of principle, of how it is that the elements of one defence are adjusted in the light of the elements of another defence.

KIRBY J: But is that not a problem that you have in your theory of the law? That is that if you are correct, then you do not really have to worry about all the principles that the law has imposed on the need for accuracy of court reports because you can get the right to publish it anyway under qualified privilege, and in that way qualified privilege becomes a spear with which to kill the requirement of accuracy of court or Parliamentary reports, to the disadvantage of society.

MR REYNOLDS: Well, in very limited situations namely where the defendant can establish that there is a relevant duty or interest to publish and an interest or duty in the recipient to receive it. That is, I submit, a very small ‑ ‑ ‑

GUMMOW J: That will not help the mass media, that is the problem.

MR REYNOLDS: That is precisely right. Where this issue has arisen most of the time is in mass media cases. The point there is that the media – and I think I said this before – are never going to be able to establish the requisite duty and interest. We are dealing here with a much narrower form of publication. What I need to do – and I will be coming to it in a moment – is show your Honours how that duty and interest exist, because I submit that if it does then, subject to the question of relevance, that is the end of the argument.

McHUGH J: In one respect I am not sure that relevance ultimately has much to do with this case. If the relevant interest is defined, as I at the moment think it should be, in terms of receiving information about the particulars of the court case, then the issue of relevance is irrelevant. On the other hand, it may be that unless you can succeed on showing that that is a relevant interest and there is a protection for it, then you just fail at the threshold.

MR REYNOLDS: Again, I will be coming to that in a moment, your Honour, and I am going to be putting an argument in detail about the circumstances here. Just to finish off the first portion of my argument on common convenience, we submit that if there is the requisite duty and/or interest that in the circumstances of this case, which I will come to in a moment, the publication was for the common convenience and welfare of society.

Now, the argument that I have just tried to put to your Honours assumed as a given that your Honour Justice McHugh’s formulation to my learned friend earlier today was correct, that is that tripartite formulation of duty interest and common convenience. What I want to do now briefly is challenge that. I want to do so, to begin with, by taking your Honours back briefly to a portion of the joint judgment of Justices Gaudron, McHugh and Gummow in the recent decision of this Court of Roberts v Bass (2002) 77 ALJR 292. The particular passage that I want to focus your Honours’ attention on is at page 303, and paragraph [62]. I just want to read half a dozen lines there. Your Honours say:

The common law protects a defamatory statement made on an occasion where one person has a duty or interest to make the statement and the recipient of the statement has a corresponding duty or interest to receive it. Communications made on such occasions are privileged because their making promotes the welfare of society.

And your Honours cite the well‑known passage in Toogood v Spyring. I will come back to Toogood v Spyring in a moment, but what I want to do right now is underline one word in that formulation of principle. That word is the word “because”.

McHUGH J: As I said to Ms McColl, ordinarily if you have the first and second points in established duty and interest in the recipient and publisher, that is it, but it may not always be the case. There may be some illegality involved in what is the duty or interest. There may be some public policy factor, for instance.

MR REYNOLDS: Your Honour, what I want to submit essentially is that this notion of common convenience goes to the type of duties, particularly the types of social and moral duty which this Court will recognise, and that is how it is factored into the equation. That is what Baron Parke does in Toogood v Spyring and I submit that your Honours have correctly summed up what he says there in Toogood v Spyring.

McHUGH J: He did not mention the interests of the recipient, did he, in that case? He has only spoken in terms of duty.

MR REYNOLDS: If I can take your Honours briefly to it. It is reported in the reprint in volume 149 of the English Reports. The full citation is (1834) 1 Cr M&R 191, but using the reprint references, the relevant passage is at 1049 to 1050. Your Honours will notice that in this formulation which has been applied many, many times in this Court that Baron Parke talks about:

the malicious publication of statements which are false in fact ‑

I underline that – and defamatory, and talks about the presumption of malice unless that is rebutted, because the statement is made:

in the discharge of some public or private duty, whether legal or moral . . . In such cases, the occasion prevents the inference of malice . . . If fairly warranted by any reasonable occasion –

that is, by the duty –

and honestly made, such communications are protected for the common convenience and welfare of society -

I submit ‑ ‑ ‑

McHUGH J: But his Lordship spoke only in terms of duty, and when he spoke, reciprocity of interest was not a recognised requirement of the common law. In fact, it might fairly be argued it was not until Adam v Ward, although in Henwood v Harrison, back in the mid‑1850s, the duty was formulated in terms of reciprocity, but he is talking about duty. He never mentions the interests of the recipient.

MR REYNOLDS: No, although I concede, your Honour, there are many, many statements that do emphasise the position of recipients. I submit – and this is a point that Mr Spencer Bower makes in his book on defamation – that as a matter of logic the question is whether there is a relevant duty or interest to publish this to these particular people. If one focuses on that as the equation, then one does not need to focus really on the nature of the interest.

McHUGH J: I must say in this case I would have thought it was the other way round, that it was the interest of the – if you can establish an interest in these people to receive it, then you probably make out the duty fairly easily, but at some time I want you to consider these issues. It seems to me that the test in this case is this: would the interest of the people who receive this publication be affected by knowing, one, that Bialkower had not adequately shown copyright in 43 MSDS sheets; two, that Justice Merkel had said courts should not prevent the supply of information concerning MSDS for safety related purposes; and three, that the publishers of Infax had engaged in misleading conduct that it may have caused damage to ACOHS. Now, surely they are the interests that are involved in this. If a newspaper is claiming qualified privilege, it does not have to show that its readers have got an interest in the racing results and everything else that appears in the paper. If they are claiming privilege in respect of a report about a politician, it is that article that is the subject of the privilege.

Likewise here, it seems to me, at the moment anyway, that it is that article that appears on 245 through to 246 that is the subject of the privilege if it exists. What interests do the subscribers have in any of those three matters? The interest has to be something quite apart from it being news or of it being of interest to them. It has to affect them in some way, just as Justice Higgins said in Howe v Lees’ Case, that the persons who received the information had an interest in getting knowledge about the buyers in order to know whether or not they would be paid if they sold sheep to these people or whatever they were selling.

So it is a concrete interest. It is not a matter of interest, as Justice Davies said in his judgment. It has to be something of substance, some legal, moral or even social duty, but it has to have substance. It has to affect the person in some way.

MR REYNOLDS: Can I get one brief response, your Honour, and I will move now in a moment I hope respond directly to what your Honour is putting to me. But in one sense, what your Honour puts to me is, in the light of my friend’s submissions, a bit surprising because in paragraph 80 of ‑ ‑ ‑

McHUGH J: I know they are, but your own submissions do not seem to me to deal with it either. You talk in generalities. At paragraph 61 you talk about “strong interest in receiving the publications”. You have interest in – “necessarily involves the acquisition of information to enable” them to provide a safe system of work. It has nothing to do with this case.

MR REYNOLDS: Your Honour, what I would like to do is refer your Honours briefly to one statement of principle and then I will go to the detail of this case in an attempt to assuage your Honour Justice McHugh. One passage that I wanted to take your Honours to is a passage in Stephen’s Case (1994) 182 CLR 211 at 240. I do not want to quote Justice Brennan, although it is his judgment at that page. I want to refer to two statements made by Justice Dixon, the first in Guise v Kouvelis, where his Honour says that:

Whatever advantages may be found in ‘broad’ or ‘flexible’ categories or tests of responsibility or immunity, they are not felt by a judge who wants to be guided in his decision. But the very width of the principles governing qualified privilege for defamation makes it more necessary, in deciding how they apply, to make a close scrutiny of the circumstances of the case, of the situation of the parties, of the relations of all concerned and of the events leading up to and surrounding the publication.

McHUGH J: Yes, but that statement, which I am not sure helps you, but it is said in relation to an oral slander and in respect of a card game when somebody said, “You are a crook. You have been cheating at cards.” It is a long way removed from this case.

MR REYNOLDS: Well, it may be factually, your Honour, but I rely upon it as a statement of principle and also the following statement adopted from the speech of Lord Loreburn in Baird v Wallace‑James which is to the same effect, that is, that it is necessary for the Court to:

examine by whom it was published, to whom it was published, when, why and in what circumstances it was published and will see whether these things establish a relation between the parties which gives a social or moral right or duty.

That is what I want to try and do.

McHUGH J: Yes, that passage is quoted by Justice Starke in Bedford’s Case as well.

MR REYNOLDS: It is, and it is also quoted by Justice Dixon in Mowlds v Fergusson and in Mowlds v Fergusson his Honour spoke for the Court.

The judgment that I am attempting to defend essentially is the judgment of Justice Hodgson, and relevantly the two key paragraphs are at pages 331 to 332. I will not read those paragraphs to your Honours but they are the key portions of his Honour’s judgment. What I want to do is ‑ ‑ ‑

KIRBY J: Can I just get the structure clear in my mind. Did you, before the trial court and in the Court of Appeal, seek to bring yourself within section 24 or not - that is to say, that this was a protected report - or are you solely within section 11?

MR REYNOLDS: No, it was not pleaded, section 24.

KIRBY J: Section 24 is not pleaded and qualified privilege under the Act is not pleaded.

McHUGH J: You relied on 22, did you not?

MR REYNOLDS: We pleaded it, but it seems to have fallen away, is all I can say.

KIRBY J: So that we are really down to section 11?

MR REYNOLDS: We are indeed.

McHUGH J: Because your conduct was not reasonable?

MR REYNOLDS: Well, your Honour, we would submit that there is perhaps a pretty good argument about that in light of the findings of good faith and the like, but that is an argument that has gone by the by and I do not wish to revisit it.

GLEESON CJ: But if you have what would otherwise be an occasion of qualified privilege at common law ‑ ‑ ‑

MR REYNOLDS: I do not need it.

GLEESON CJ: ‑ ‑ ‑it involves a very substantial reduction of free speech to require that the conduct be reasonable, because then the privilege only attaches to reasonable people.

MR REYNOLDS: Quite, and that is why in this case counsel for the defendant no doubt thought that his best shot was to defend the case on the basis of common law qualified privilege.

CALLINAN J: You had the problem of the telephone call with the conversation with the journalist and ‑ ‑ ‑

MR REYNOLDS: I knew your Honour would be on to that eventually. But, as I say, I do not have to deal with that because it is not an issue which arises and I rest, so far as your Honour is concerned, on the findings of good faith and like remarks that are made that we like in the judgment of Justice Davies.

KIRBY J: Yes, but if we are talking about matters of legal principle, the common law defence in section 11 must be consistent with the statutory scheme. You cannot, as it were, postulate a common law defence which breathes life into common law principles which will not stand with the statutory scheme. It just cannot be as a matter of deference to the will of Parliament. If Parliament has said the law of defamation is this and insofar as we have not dealt with something you can pick up bits and pieces of the common law, what you can pick up must be consistent with what Parliament has enacted. It is just basic principle.

CALLINAN J: You say section 11 has been enacted by Parliament and it expressly gives you that defence.

MR REYNOLDS: I do indeed.

KIRBY J: Yes, but expressio unius would exclude anything being brought in by the caravan of section 11 otherwise you just walk a caravan right through the Act.

MR REYNOLDS: Your Honour, as I think Chief Justice Griffiths said, that maxim is a faithful servant but a ‑ ‑ ‑

KIRBY J: I know all that, but you cannot bring in defences that will not fit comfortably with the specific provisions that Parliament has enacted.

MR REYNOLDS: Your Honour, the short submission is that we submit that the common law defence as we are articulating it fits in very comfortably both with the Act and with previous case law in the common law.

GLEESON CJ: If section 22 cuts down section 11 in relation to qualified privilege, then the provisions of section 22(1)(c) were an enormous curtailment of the right of free speech.

MR REYNOLDS: Quite, and there are dozens of cases where the occasion of qualified privilege has been recognised at common law in New South Wales where the criterion of reasonableness would never have been made out.

GUMMOW J: New South Wales is not Australia and Macquarie Street is not Canberra.

MR REYNOLDS: Quite, and what I have weighted in ‑ ‑ ‑

HAYNE J: Words “does not . . . vitiate, diminish or abrogate” might have to be given some meaning.

MR REYNOLDS: That is my primary submission, but just picking up on what your Honour Justice Gummow said, if this argument from what I will call the policy behind legislation is going to be pursued, vis-à-vis the development of the common law, first of all, as your Honour Justice Callinan pointed out in the Esso Case – I will fish out the reference in a moment – there is also a real issue about whether you can reason in that way. Some Justices in this Court, such as your Honour Justice Kirby, have said that you can.

The one thing that is clear from the Esso decision is that if counsel want to argue that the common law should be developed in the light of legislation, counsel has to show that there is a consistent policy manifest generally in all of the relevant States, and that is an argument which Ms McColl, I submit, has not even attempted to advance to your Honours in this Court.

McHUGH J: It is reasonably plain on its face that sections like section 22 were intended to extend protection, not to cut them back. It is just inconceivable that when Parliament enacted section 22 it effected the law of qualified privilege concerning character references. To give a character reference you do not have to show that your conduct was reasonable in the circumstances. Section 22 would literally apply to such a case. I have never heard anyone so far suggest that you could not rely on the ordinary common law rules of qualified privilege.

MR REYNOLDS: Quite. Can I just give your Honours a reference to Esso. It is Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49.

KIRBY J: You are dropping your voice now, Mr Reynolds. This is reciprocity between the Bench and counsel. You have to keep your voice up.

MR REYNOLDS: I shall try and boom it out hereafter, your Honour. Can I focus then on Justice Hodgson’s judgment ‑ ‑ ‑

HAYNE J: Before you go and read me a slab of it, let me into the secret. What is the interest?

MR REYNOLDS: Essentially, the interest derives from the position which all the recipients hold, and that is that there is a holding, at appeal book page 331 lines 32, 330 at line 10, 323 at line 45, that the recipients were those responsible for occupational health and safety within their organisation. There are two words, we submit, that are important there. The first is “responsible” and the second is “safety”, and I want to dilate on both of them.

As far as the word “responsible” is concerned, it necessarily involves the notion that these people are responsible for – if they are responsible for occupational health and safety, then presumably they are responsible for all manner of matters relating to primarily a safe system of work within the organisation for the employees. Now, it is not something that Justice Hodgson dilated upon in his judgment.

HAYNE J: Do you say that his Honour found, or there was a finding below, that the recipients were those responsible?

MR REYNOLDS: Exactly.

HAYNE J: Where do I find that?

MR REYNOLDS: Those three references I gave.

HAYNE J: Yes.

MR REYNOLDS: Would your Honour like ‑ ‑ ‑

HAYNE J: Because it is not apparent to me that that is what is found in paragraph 32 of his Honour’s judgment.

MR REYNOLDS: I am sorry, your Honour. It was page 331 at line 32.

HAYNE J: Yes, I understand that, which is paragraph 32 of his Honour’s judgment which, it seems to me, does not amount to such a finding.

KIRBY J: Well, it is 332 at 33 that you have just read, I think:

The publication of the communication in this case was in a newsletter distributed to persons responsible for occupational health and safety, who had paid a substantial subscription for the newsletter, and not to any wider audience.

That is what you rely on.

MR REYNOLDS: That is what I rely on and ‑ ‑ ‑

KIRBY J: Is that reflected in the primary judge’s finding?

MR REYNOLDS: I do not believe so, your Honour, but there is no challenge in this Court to that finding.

McHUGH J: Well, that is an extraordinary proposition, is it not? You will be talking a long time to persuade me that that is a proper definition of an interest. If that is right, the producers of the Law Institute Journal could make any defamatory statement they liked in that journal about anybody because the recipients of the publication have an interest in legal matters. I mean, all the cases show – go to Howe’s Case itself, which is the best case in your favour. Justice Higgins was at pains to point out how precise the interest has to be. You have to have an interest in knowing the facts, not just some generality about you have an interest in receiving a newsletter distributed to people responsible for ‑ ‑ ‑

MR REYNOLDS: Your Honour, that is a finding that is not challenged and I say by reason of holding those positions and having those duties they have an interest, a relevant interest, in knowing about the issue that I will come to, which ‑ ‑ ‑

McHUGH J: Well, if that proposition is right, it means that if Justinian happens to make a mistake and defames some lawyer, then it has qualified privilege as long as it publishes its mistake in good faith, no matter how serious the defamation.

MR REYNOLDS: Your Honour, this ‑ ‑ ‑

McHUGH J: This is to 900 people, it could be thousands.

MR REYNOLDS: What I have to show is that there is something special about the circumstances in this case that takes this beyond the situation which would obtain in the publication of a trade journal to a series of subscribers. I accept that, and that is what I am trying to do, and I am first of all focusing upon this finding that all of the recipients – I underline this – that all of them are persons who have duties, who are responsible for occupational health and safety within their organisations, and there is no challenge to that finding in this Court.

Those duties, I submit, involve necessarily duties which are necessary to enable them to perform their legal duties and that will involve eliciting, obtaining information, in relation to matters relating to occupational health and safety law and also in relation to work practices and the like, because ‑ ‑ ‑

McHUGH J: Yes, but this article had nothing to do with any of those things except in one respect, perhaps tangentially, and that was because of Justice Merkel’s statement that he said courts should “not prevent” the supply of information concerning MSDS’s “for safety‑related purposes”. What is said at paragraph 33 of his Honour’s judgment can be accepted but it does not go to the issue with which the Court should be concerned.

KIRBY J: But why, if people are occupational health and safety officers of companies, and they have gone out of their way to get this specialist newsletter, are they to be kept in the dark of what the Federal Court has decided in a matter that concerns their vocation?

MR REYNOLDS: Indeed.

McHUGH J: That is another issue. The point is ‑ ‑ ‑

KIRBY J: The law of qualified privilege, one would think, in this country, is going to provide protection in such a reciprocity of interest.

MR REYNOLDS: Well, your Honour, I submit that few things could be more important to a person occupying this position as OHS manager than this, and that is that in relation to all of the safety‑related material that crosses your desk, most of which in some form is probably copyright, you may feel free to disseminate that material within your workplace without fear of breach of copyright, because it goes right to the centre of the core of this man’s duties, because that is what he has to do within that particular organisation. Each of these persons had a duty to seek out this information and what my client did was a public service to enable that duty ‑ ‑ ‑

McHUGH J: But what is the information they had a duty to seek out? What I was putting to you, that there are three subject matters of this publication: one, that Bialkower had not adequately shown copyright in 43 MSDS’s; two, that Justice Merkel said that if he had the court should not prevent the supply of information concerning those; and three, that Infax and Bashford and somebody else had engaged in misleading conduct that had caused harm to ACOHS. What interest did each subscriber have in receiving that information, in the sense that their interests would be affected by knowing it? I am just looking at what Justice Griffiths said in Howe where he said they had:

an interest in the subject matter to which the communication is relevant, as for instance the solvency of a probable customer.

He is being specific. Justice Higgins was even more specific in his reasons.

MR REYNOLDS: Picking up, since your Honour raises Howe v Lees with me, the test – and this is probably the one that has been most applied in this Court – of Justice Higgins is to be found in that case at page 398 at about point 5. It is only a short passage and therefore I will read it to your Honours. He says that:

The truth seems to be that 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.

Your Honours, the recipients here within that test had, I submit, the clearest interest in knowing about the implied licence to distribute safety‑related material within the workplace. That is not a matter of, I submit, mere curiosity or news. It is something which goes right to the core of the duties that they needed to perform in the workplace. They need to communicate essentially with the employees in the workplace about safety‑related issues. The main mode of communication will be to send the employees things in writing or alternatively to talk to them in person.

McHUGH J: Yes, but that is a licence to defame. You have to have an interest in the subject of the communication. Justice Higgins made clear what he was talking about at 398 back at 393, at about point 6 on the page where he said:

Each auctioneer has an interest in getting knowledge as to the buyers, in order that he may not be induced to knock sheep down to persons who won’t pay. When information is given to these men as to the solvency of a buyer, it is not given to them as idle gossip; it is for solid business uses.

MR REYNOLDS: Here, I submit, your Honour, it is for solid use as part of the recipient’s duties within the workplace.

McHUGH J: What interest did they have in knowing that the Infax publishers had engaged in misleading conduct that caused harm to ACOHS?

MR REYNOLDS: Your Honour, that is the relevance issue ‑ ‑ ‑

McHUGH J: No, it is not. It is one of the matters that is there, and in fact it is the very heart of the defamation. It is imputation (b).

MR REYNOLDS: Your Honour, can I underline – before dealing with that point – that we have moved here, away from examining the proposition, that the recipients had an interest in knowing about the implied licence in relation to the dissemination of safety‑related material. Your Honour is, with respect, now moving off that point, and now saying, okay, what about the section 52 case? You cannot say that the recipients had an interest in knowing about the detail of that. It is implicit in the question that your Honour is putting to me that the cross‑claim in this case is the aspect of the decision before Justice Merkel which raised these copyright issues.

As your Honours listened to my learned friend, your Honours must have had the impression that there were two quite discrete parts of this case before Justice Merkel. The first was the agitation of copyright issues on the cross‑claim, and the other case is what I shall call the main claim which is the section 52 claim which your Honours must be thinking does not really have anything to do with the copyright case. Your Honours, I submit that the copyright issues in this case were common to both the cross‑claim and also to the section 52 case.

Now, that statement your Honours must think is rather puzzling. Can I try and explain why it is that I say that and it is because it goes to the way this case was conducted against Mr Bialkower in the Federal Court proceedings before Justice Merkel and I will take your Honours to the detail of it in a moment. But if I can put it a little bit loosely to try and explain the point that I am trying to make, Mr Bialkower is a respondent in Federal Court proceedings. The applicant brings a case against him alleging misleading conduct but, importantly, one of the misleading statements is that the applicant says Mr Bialkower has falsely alleged that the applicant breached Mr Bialkower’s copyright, so that is part of the section 52 case.

So what happened was Mr Bialkower no doubt thought, “Well, I am going to have to show that that statement is not misleading and to do that I am in effect going to have to run a breach of copyright case against the applicant.” So what he chose to do was to defend the section 52 case in substance by alleging breach of copyright and at the same time he ran a cross-claim alleging breach of copyright back against the applicant. That is made clear ‑ ‑ ‑

GLEESON CJ: To whom had Mr Bialkower made the allegation of breach of copyright in the first place?

MR REYNOLDS: He made it in an Infax newsletter. I forget who the recipients were, your Honour, but I submit it is not material to the point that I am trying to make.

GLEESON CJ: I thought - correct me if I am wrong - that there was a provision of the Trade Practices Act that said that information providers did not have to comply with section 52.

MR REYNOLDS: That is section 65A. Your Honour is quite right.

GLEESON CJ: Was that argued in ‑ ‑ ‑

MR REYNOLDS: Your Honour, that is one of many curiosities perhaps about this decision of the Federal Court but it does not seem to have been a matter that was raised, is the short answer. My learned friend says it was, but - I stand corrected on that if it is referred to, but it is, I submit, not relevant to the point I am trying to make.

If I can take your Honours to Justice Merkel’s judgment at page 178 of the appeal book, your Honours will see at about line 30 the judge talks about the proceedings under section 52 against various respondents including Mr Bialkower, and then at about line 39 these are the important words:

Bialkower ‑

he is the respondent ‑

denied any involvement in RMS’s or RMC’s conduct in relation to the Chemwatch news item. As part of his defence and also by way of cross‑claim, Bialkower claimed that although the Chemwatch news item was incorrect as a statement of fact, his claim that the use by Acohs of Chemwatch MSDSs constituted an infringement of his copyright was correct.
Accordingly, although the proceeding was instituted as a consequence of Acohs’ s.52 claim, the primary dispute related to Bialkower’s claim for protection of copyright in Chemwatch’s MSDSs.

So the copyright issues, if I can put it that way, were agitated (a) in their own right as part of the cross‑claim; and (b) by way of defence to this section 52 case. So going back to the question that your Honour Justice McHugh raised with me earlier, if one assumes that the recipients had an interest in knowing about the licence to publish safety related material within the workplace, then that issue arose not only on the cross‑claim but also on the section 52 case and therefore if my client was going to tell these recipients about that case, then it needed to tell them about both the section 52 case and the claim for breach of copyright on the cross‑claim.

McHUGH J: One of your problems is that qualified privilege is a defence by way of confession and avoidance and what you have to confess and avoid is imputation (b), which is set out at 293, and you seem to be attempting to do that by saying, “We have another case in respect of other matters and therefore, because it has some connection with imputation (b), that is a defence to imputation (b). Now, what authority is there for that proposition?

MR REYNOLDS: Well, as your Honour appreciates, these are imputations and the law of qualified privilege at common law is a defence really to the matter complained of, because it says that the matter complained of was published on an occasion of qualified privilege.

McHUGH J: That is so.

MR REYNOLDS: So, I do not have to lock horns, I respectfully submit, with what the precise imputation is. What I have to do ‑ ‑ ‑

McHUGH J: But you have to meet the substance of it and you have to meet that part of the publication that deals with it, and that is the part that is set out on page 246, probably from column 2, from about line 19 or 20 down.

MR REYNOLDS: Well, your Honour, this raises, I submit, the relevance issue that my learned friend put to your Honours and the proposition I want to advance is that this case does not really raise for decision which of the many tests referred to in the case law is the correct one. Can I take your Honours ‑ ‑ ‑

McHUGH J: Anyway, before you leave that, the question remains, even if in some way you have made good your point, there is a connection between the copyright claim and this, the question is, what interest did these people have in knowing this defamatory statement about this plaintiff?

MR REYNOLDS: Your Honour, I say they had – I know I am repeating myself – an interest in knowing that they had a licence ‑ ‑ ‑

McHUGH J: No, I know you have said that, but what interest did they have in knowing that Bashford and Infax had engaged in misleading conduct?

MR REYNOLDS: Your Honour and I, I submit, are essentially now at loggerheads in argument on an issue of principle, which is about whether what your Honour is putting to me is correct as a matter of law.

What I want to submit is that provided I can show that this publication deals with a matter which was of interest to the subscribers and I can then show that the defamatory portion was relevant to the discussion of that issue, then I show that the relevant portion of the matter complained of was published on an occasion of qualified privilege.

CALLINAN J: Mr Reynolds, sorry to interrupt you, but do you say that you have to show that the matter is relevant or the imputation is relevant?

MR REYNOLDS: The former.

CALLINAN J: Why not the latter?

MR REYNOLDS: Because we are dealing here with a common law defence. Common law defences are preserved and they are not relevantly altered. Common law defences go to the occasion and not to the imputation and therefore that is why the defence is pleaded to the publication rather than to the imputation. That is why the defence says the matter complained of was published on an occasion of qualified privilege. That defence, in that form, would not be struck out, for that reason, I submit.

HAYNE J: The connection is also drawn, perhaps, internally, is it not? If you go to 246, the matter complained of, much attention of course is given to lines 26 and following in column 2, but they must be understood in light of what is said at lines 22 and following:

ACOHS sued the publishers . . . which had printed a report claiming ACOHS was one of two companies Bialkower successfully prosecuted for MSDS copyright infringement.

The statement about engaging in false and misleading conduct – more accurately, misleading or deceptive conduct – is the misleading statement that ACOHS had been “successfully prosecuted for MSDS copyright infringement”. So that the connection lies by reading the whole of the immediate context ‑ ‑ ‑

MR REYNOLDS: Your Honour, with respect, is quite right, because the connection between the defence of the section 52 case and the running of the copyright issues on the cross‑claim is manifest in the matter complained of itself.

HAYNE J: Misleading and deceptive conduct being found in saying (falsely) that copyright action had successfully been brought?

MR REYNOLDS: Quite so.

GLEESON CJ: Was there any evidence as to whether the recipients of the newsletter called “Infax” would have overlapped with the recipients of this publication? In other words, is there any suggestion that the same kind of people would have read the original misinformation as read this?

MR REYNOLDS: I do not believe so, your Honour.

GLEESON CJ: Mr Reynolds, I only ask this question for the purpose of giving a “not before” marking to the next case on the list. How long do you think you will be?

MR REYNOLDS: May I pause for a moment, your Honour. I would estimate an hour, your Honour.

GLEESON CJ: All right, we will say that the next case on the list will be not before 11 am. Could I ask you to think about this question overnight. Everybody agrees, as I understand it, that if a defence of protected report is raised, the defence will be lost if the report was not accurate.

MR REYNOLDS: If it was substantially inaccurate.

GLEESON CJ: Yes.

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

GLEESON CJ: Understanding that agreement, can I ask you this? If the reason underlying the defence of protected report is the public benefit that results from court proceedings not being conducted in secret, why is the defence lost if the reports are inaccurate?

MR REYNOLDS: Your Honour, we will take that on board and I will try and answer that tomorrow morning.

GLEESON CJ: Yes. We will adjourn until 10.15 am.

AT 4.19 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 3 APRIL 2003

[2003] HCATrans 633

Key Legal Topics

Areas of Law

Commercial Law

Contract Law

Intellectual Property

Legal Concepts

Breach

Damages

Injunction

Remedies

Offer and Acceptance