Bashford v Information Australia (Newsletters) Pty Ltd

NEW SOUTH WALES COURT OF APPEAL

CITATION: Bashford v. Information Australia (Newsletters) Pty. Limited [2001] NSWCA 470

FILE NUMBER(S):
40619/00

HEARING DATE(S): 16 November 2001

JUDGMENT DATE: 12/12/2001

PARTIES:
Rex Bashford - Appellant
Information Australia (Newsletters) Pty. Limited - Respondent

JUDGMENT OF: Sheller JA Hodgson JA Rolfe AJA

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): CLD 20872/97

LOWER COURT JUDICIAL OFFICER: Davies AJ

COUNSEL:
Mr. B. McClintock SC with Ms. M. Kumar (A)
Mr. T.S. Hale SC with Mr. White (R)

SOLICITORS:
Eakin McCaffery Cox, Sydney for appellant
Corrs Chambers Westgarth, Sydney for respondent

CATCHWORDS:
DEFAMATION - Common law defence of qualified privilege - Truth - Contextual imputations - Whether occasion of qualified privilege - Reciprocal duty and interest - Inaccurate report of court proceedings - Whether privilege defeated - Whether additional material protected. D.

LEGISLATION CITED:
Defamation Act 1974 ss.15, 16

DECISION:
Appeal dismissed with costs

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40619/00
CLD 20872/97
SHELLER JA
HODGSON JA
ROLFE AJA

Wednesday 12th December 2001

BASHFORD V. INFORMATION AUSTRALIA (NEWSLETTERS) PTY. LIMITED

Judgment

SHELLER JA: I have had the benefit of reading in draft the reasons for judgment prepared by Hodgson JA and Rolfe AJA. I agree with Hodgson JA’s decision and the reasons therefore. Critical to my conclusion is the opinion that the matter complained of was connected and sufficiently connected with the subject matter of the privileged occasion. On that point Rolfe AJA disagrees.
The test has been described by various epithets. In Adam v. Ward [1917] AC 309 the expressions “extraneous matter”, “not relevant and pertinent to the discharge of the duty”, “beyond what was germane and reasonably appropriate to the occasion”, “not really necessary to the fulfilment of the particular duty or right which is the foundation of the privilege on the occasion”, “unconnected with and irrelevant to the main statement which is ex-hypothesi privileged” and “foreign and totally unconnected matter” are used to suggest exclusion from the privilege whereas “germane and reasonably appropriate on the occasion”, “part and parcel of the privileged statement and relevant to the discussion” and “germane to the subject matter of the occasion” are used to suggest protection.
In Bellino v. Australian Broadcasting Corporation (1996) 185 CLR at 228 the majority members of the High Court used the expression “relevant to the occasion”. I do not think any one of these expressions is intended to denote a different idea or a different test. They are different ways of describing what is “relevant to the occasion”.
The defamatory material was contained in the last seven paragraphs of an article headed “MSDS Copyright Case Dismissed”. Most of that article was directed to a claim of copyright in forty-three “material safety data sheets (MSDS)”. The Federal Court had dismissed that claim. The article made the point that if the claim had succeeded it would have had the effect of limiting or impeding access to information which should be available to a workplace where particular hazardous substances were used. The last seven paragraphs 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 which contained the matter complained of were part of that explanation. In my opinion, those three paragraphs were relevant to the discussion of the claim and therefore relevant to the occasion.
For the reasons Hodgson JA has given I agree that the appeal should be dismissed with costs.
HODGSON JA: This is an appeal by leave from a decision of Davies AJ given on 12th July 2000, in which his Honour dismissed defamation proceedings brought by the appellant against the respondent.
CIRCUMSTANCES
The publication complained of was made on about 28th May 1997 in the respondent’s newsletter entitled “Occupational Health & Safety Bulletin”. This was a newsletter for the supply of information on occupational health and safety issues, distributed for an annual subscription of $395.00, with readership comprising persons with responsibility for occupational health and safety within their organisations.
The publication concerned a decision given on 9th May 1997 by Merkel J in proceedings in the Federal Court of Australia.
Those proceedings had been commenced in 1993 by ACOHS Pty. Limited (ACOHS), seeking relief in relation to allegedly misleading statements in a newsletter called Infax, against two companies involved in the publication of that newsletter, and against a person Bernie Bialkower, who was alleged to be the source of the statements and to have authorised their publication. 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.
Mr. Bialkower had brought a cross-claim in those proceedings, claiming that ACOHS had breached his copyright in certain safety data sheets by transcribing them into its database, and seeking an injunction against further infringement of that copyright.
In his decision, Merkel J found RABC, RMC and Mr. Bialkower liable in damages to ACOHS, for harm caused by misleading statements published in the Infax newsletter, which he assessed at $20,000.00; and he ordered the defendants to pay ACOHS’s costs.
Merkel J dismissed Mr. Bialkower’s cross-claim, holding that there was no breach of copyright, and adding that he would in any event have refused relief on discretionary grounds, including the public interest that disclosure of safety data sheets for safety-related purposes should not be impeded.
The report of this decision in the respondent’s newsletter dealt principally with the decision on the cross-claim, publicising the decision as being good for safety in that it promoted the availability of information relevant to safety. However, the report concluded by referring to the original claim, in respect of which it said this:
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 $20,000.00 damages and ordered Bialkower, RA Bashford and Risk Management Concepts to pay their legal costs.
As pointed out by Davies AJ, this was incorrect in two respects: (1) it used the name “R.A. Bashford” rather than “R.A. Bashford Consulting Pty. Limited”; and (2) it suggested that the appellant was a publisher of the newspaper, whereas as noted above, RABC was somewhat indirectly involved in its publication.
At a previous hearing before a jury, one of three imputations alleged by the appellant was found to have been conveyed, namely:
That the Plaintiff by publishing a false report concerning ACOHS Pty. Limited had been found by the Federal Court of Australia liable to ACOHS Pty. Limited in damages and costs for causing it harm and loss;
PRIMARY DECISION
Relevantly, Davies AJ dealt with three defences:
(1) the defence of truth, pursuant to s.15 of the Defamation Act;
(2) the defence of contextual truth pursuant to s.16 of the Defamation Act, on the basis of the following alleged contextual imputations:
(i) that the plaintiff was engaged in the business of publication of a newsletter one issue of which was found by the Federal Court of Australia to have contained a false report about ACOH Pty Ltd for which the court awarded it damages and costs for the harm and loss it suffered;
(ii) that the plaintiff was engaged in the business of the publication of a newsletter one issue of which was found by the Federal Court of Australia to have constituted false and misleading conduct;
(iii) that the plaintiff was engaged in the business of the publication of a newsletter one issue of which was found by the Federal Court of Australia to have contained seriously misleading statements which caused harm to the repute and goodwill of ACOH Pty Ltd;
(iv) that the plaintiff permitted an edition of a newsletter to be published which the Federal Court of Australia found to contain a false report about ACOH Pty Ltd for which the court awarded it damages and costs for the harm and loss it had suffered;
(v) that the plaintiff permitted an edition of a newsletter to be published the publication of which the Federal Court of Australia found to have constituted false and misleading conduct;
(vi) that the plaintiff permitted an edition of a newsletter to be published which contained seriously misleading statements which caused harm to the repute and goodwill of ACOH Pty Ltd.
(3) the common law defence of qualified privilege.
The relevant sections of the Defamation Act are ss.15 and 16, which are as follows:
15(1)   Notwithstanding section 11, the truth of any imputation complained of is not a defence as to that imputation except as mentioned in this section.
(2)   It is a defence as to any imputation complained of that:
(a)the imputation is a matter of substantial truth, and
(b)the imputation either relates to a matter of public interest or is published under qualified privilege.
16(1)   Where an imputation complained of is made by the publication of any report, article, letter, note, picture, oral utterance or other thing and another imputation is made by the same publication, the latter imputation is, for the purposes of this section, contextual to the imputation complained of.
(2)   It is a defence to any imputation complained of that:
(a)the imputation relates to a matter of public interest or is published under qualified privilege,
(b)one or more imputations contextual to the imputation complained of:
(i)relate to a matter of public interest or are published under qualified privilege, and
(ii)are matters of substantial truth, and
(c)by reason that those contextual imputations are matters of substantial truth, the imputation complained of does not further injure the reputation of the plaintiff.
Davies AJ considered that the s.15 defence was not made out: because the imputation concerned R.A. Bashford and not RABC, the imputation was not true in substance.
In relation to the s.16 defence, Davies AJ held that the respondent’s contextual imputations should not be drawn as imputations from the publication, and that in any event they did not differ in substance from the appellant’s imputations.
However, Davies AJ found for the respondent on qualified privilege. He held that the principal part of the article, dealing with Mr. Bialkower’s cross-claim, was published on a privileged occasion, because the cross-claim “raised issues which were of general interest to persons operating in the field of occupational health and safety”. As regards that part of the report which related to the original proceedings, the primary judge held that it too was within the privilege, because it was not irrelevant to the occasion. The primary judge also held that malice had not been proved.
GROUNDS OF APPEAL
The Notice of Appeal contained one ground:
His Honour erred in determining that the matter complained of was published on an occasion of qualified privilege.
The respondent has filed a Notice of Contention, to the effect that the decision of the primary judge should be affirmed on the grounds that his Honour erred in not holding that:
(a) The defence of truth pursuant to s.15 of the Defamation Act 1974 had been made out.
(b) The defence of contextual truth pursuant to s.16 of the Defamation Act 1974 had been made out.
QUALIFIED PRIVILEGE
Submissions
Mr. McClintock SC for the appellant submitted that the primary judge was wrong in relation to qualified privilege, for three reasons:
(1) The primary judge was wrong to find that the publication was made on an occasion of qualified privilege, because this would require reciprocity of duty and interest, and there was no duty on the respondent in this case: the primary judge did not consider whether there was a duty, and in any event, duty was not shown.
(2) Even if it had been an occasion of qualified privilege, the part of the article containing the imputation against the appellant was outside the protection of that privilege.
(3) In any event, qualified privilege does not protect an inaccurate report of court proceedings.
In relation to the first matter, Mr. McClintock submitted that, although the primary judge found that the recipients of the respondent’s newsletter had an interest to receive the information, he did not address or make any finding as to whether there was an interest or duty in the respondent to publish the information. Both requirements are necessary: see Adam v. Ward [1917] AC 309, at 334; Watt v. Longsdon [1930] 1 KB 130 at 147-8; Macintosh v. Dun [1908] AC 390; Gatley on Libel and Slander, 9th Ed., chapter 14; Toogood v. Spyring (1834) 1 CM&R 181. There was in fact no basis in the evidence on which it could be found that the respondent had any relevant duty or interest. The fact that the newsletter was published and distributed to subscribers pursuant to a contract was irrelevant: Macintosh v. Dun. It is not possible to grant oneself a duty so as to give oneself a licence to publish untrue and defamatory material.
As to the second matter, Mr. McClintock submitted that on any view, there was no duty or interest in relation to the actual defamatory material, whatever might be said about the publication concerning the cross-claim. The actual defamatory material was entirely irrelevant to the matter which had some relevance to occupational health and safety.
On the third matter, Mr. McClintock submitted that, plainly, a defence of fair protected report under s.24 of the Defamation Act must have failed, because the report of the judgment of Merkel J was inaccurate: presumably, that was the reason why the respondent did not plead the defence. In relation to reports of court proceedings, qualified privilege applies and gives protection only if the report is accurate: see Morosi v. Mirror Newspapers Limited [1977] 2 NSWLR 749 at 775, 780; Stephens v. Western Australian Newspapers Limited (1994) 182 CLR 211 at 246; Chakravarti v. Advertiser Newspapers Limited (1988) 193 CLR 519 at 556.
Mr. Hale SC for the respondent submitted that the underlying principle of qualified privilege was that certain communications are protected for the common convenience and welfare of society, and the requirement of the existence of duty and interest is to be understood in the context of that underlying principle. See Howe & McCullough v. Lees (1910) 11 CLR 361; Macintosh v. Dun [1908] AC 390; Telegraph Co. Newspaper Limited v. Bedford (1934) 50 CLR 632; Adam v. Ward [1917] AC 309; Lange v. Australian Broadcasting Corporation (1997) 189 CLR 520; Stuart v. Bell [1891] 2 QB 341; Toogood v. Spyring (1834) 1 CM&R 181; Whiteley v. Adams 15 CBNS 292. There is the requisite duty when the communication “was 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” (Howe & McCullough v. Lees at 369) or under a sense of duty as would be recognised by people of ordinary intelligence and moral principle (Macintosh v. Dun at 399). Although a privileged occasion cannot be manufactured by an agreement, an agreement will be taken into account as part of the circumstances in considering whether the occasion is privileged (Howe & McCullough v. Lees at 370, 394).
Mr. Hale submitted that the respondent’s bulletin was published to persons who had responsibility for the occupational health and safety of employees in their organisations; it could only be obtained on subscription; the subscribers paid an annual subscription of $395.00 to be informed each fortnight about their occupational health and safety obligations; subscribers were relying to some extent on the bulletin to inform them of these obligations; and the annual subscription in effect amounted to a standing enquiry to be informed about this information.
In relation to the appellant’s claim that the defamatory part of the publication was not relevant to the occasion of qualified privilege, Mr. Hale submitted that it was not extraneous or quite unconnected with the main statement: see Adam v. Ward [1917] AC 309 at 318, 327, 339-340, and 348. Mr. Hale also referred to Horrocks v. Lowe [1975] AC 135, at 151.
On the third matter, Mr. Hale submitted that the requirement that a report of judicial proceedings be fair and accurate related to one category of qualified privilege, and did not apply where the basis of qualified privilege was the reciprocity of interest and duty discussed in cases such as Toogood v. Spyring: see Gatley on Libel and Slander, 9th Ed., par.14.87, Spencer-Bower The Law of Actionable Defamation, 2nd Ed., p.112, 116-119, 121, and 376-381; and Kimber v. The Press Association [1893] 1 QB 65 at 69. The passages in Morosi and Stephens were to be understood in that context.
Decision
In my opinion, the primary judge did consider the necessity for the respondent to show a duty to make the communication. At par.20, he set out a statement of principle by Lord Atkinson in Adam v. Ward [1917] AC 309 at 334, that “a privileged occasion is, in reference to qualified privilege, an occasion where the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to a person to whom it is made and a person to whom it is so made has a corresponding interest or duty to receive it”, and also the following sentence: “This reciprocity is essential”. In par.22, the primary judge expressed himself as satisfied that the principal part of the article, dealing with the cross-claim, was published on a privileged occasion, because the cross-claim “raised issues which were of general interest to persons operating in the field of occupational health and safety”. At that stage, there was no mention of duty. However, in the following paragraph, dealing with the other part of the report, the primary judge noted that the claim for misleading and deceptive conduct was not a matter of interest to persons in the occupational health and safety field, and in par.24, the primary judge said that this report would not alone have been the subject of qualified privilege “for there was no duty to report it and there was no particular interest in the subscribers to the Bulletin to receive information about it”. In my opinion, those passages made it clear that the primary judge did consider that the respondent had a duty to report in relation to the principal part of the publication concerning the cross-claim.
In any event, I am satisfied myself 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 to persons responsible for occupational health and safety do promote that common convenience and welfare. The respondent, having accepted subscriptions for a newsletter on such matters, was morally and legally obliged to publish for subscribers matters of significance on that topic, and the decision on the cross-claim in this case fell within that description. It is in my opinion irrelevant that failure to publish this particular report would not of itself have been an actionable breach of contract: it is in my opinion sufficient that there was a duty, moral and legal, to include matters of this type in the newsletter. I accept of course that one cannot create a licence to oneself to defame other persons by undertaking a contractual obligation to supply information (Macintosh v. Dun), but the existence of a contract of the type that existed here does in my opinion support the existence of a duty of communication where there is truly a public interest in the communication being made (Howe & McCullough v. Lees).

In my opinion, the situation is very different from a publication in a newspaper of general distribution, where 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 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.
On the question whether the qualified privilege attached to the part of the article containing the imputation, the leading authorities of Adam v. Ward and Horrocks v. Lowe suggest that the test of relevance to be applied is not a stringent one. The principles are expressed somewhat differently by the different judges in the two cases, and it is convenient to set out here the principal passages.
In Adam v. Ward, at 318, Lord Finlay LC said this:
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 which the defendant may have made at the same time. The introduction of such extraneous matter affords evidence of malice which will take away protection on the subject to which privilege attaches, and the communication on the extraneous matter is not made upon a privileged occasion at all, inasmuch as the existence of privilege on one matter gives no protection to irrelevant libels introduced into the same communication.
At pp.320-321, Earl Loreburn said this:
But the fact that an occasion is privileged does not necessarily protect all that is said or written on that occasion. Anything that is not relevant and pertinent to the discharge of the duty or the exercise of the right or the safeguarding of the interest which creates the privilege will not be protected. To say that foreign matter will not be protected is another way of saying the same thing. The facts of different cases vary infinitely, and I do not think the principle can be put more definitely than by saying that the judge has to consider the nature of the duty or right or interest and to rule whether or not the defendant has published something beyond what was germane and reasonably appropriate to the occasion, or has given to it a publicity incommensurate to the occasion. For a man ought not to be protected if he publishes what is in fact untrue of someone else when there is no occasion for his doing so, or when there is no occasion for his publishing it to the persons to whom he in fact publishes it.
At pp.326-327, Lord Dunedin said this:
What now is the situation? You have a communication issued on a privileged occasion; and in gremio of that communication are used words which are in themselves defamatory. What test is to be applied? On the one hand, it is said that, the occasion being privileged, the whole document is privileged, but that if in the document you find parts which are not really necessary to the fulfilment of the particular duty or right which is the foundation of the privilege on the occasion, then these parts may be used as evidence of express malice.
…
On the other hand, it is said that it is not necessarily a question of malice at all; that privilege applies to what is written and published in response to a duty or right; and that if anything is found in the thing published which is not reasonably appropriate to that duty or right, then privilege cannot extend to that. My Lords, I think it will be found that in most cases these are merely two ways of expressing the same point. But there is this to be said in favour of the former method, that it is a formula which as a test will fit most if not all cases, whereas the second would necessarily break down in a good many. For it could always be said with apparent force that it never can be necessary to incorporate in a statement made in response to a duty or right any defamatory statement which is not logically necessary to fulfil that duty or right.
…..
If the defamatory statement is quite unconnected with and irrelevant to the main statement which is ex hypothesi privileged, then I think it is more accurate to say that the privilege does not extend thereto than to say, though the result may be the same, that the defamatory statement is evidence of malice. But when the defamatory statement is, so to speak, part and parcel of the privileged statement and relevant to the discussion, then I think the first way is the true way to put it, and under it will also range all the cases where the express malice is arguable from the too great severity or redundancy of the expressions used in the privileged document itself.
At pp.334-5, Lord Atkinson said this:
It was, however, strenuously contended on the part of the appellant, as I understood, that the language used in a communication made on a privileged occasion must, if it is to be protected, merely be such as is reasonably necessary to enable the party making it to protect the interest or discharge the duty upon which the qualified privilege is founded. It has long been established by unquestioned and unquestionable authority, I think, that this is not the law.
And at p.340, Lord Atkinson also said this:
A more difficult question, however, remains upon which the authorities cited give little, if any, assistance. It is this: What would be the effect of embodying separable foreign and irrelevant defamatory matter in a libel? Would it make the occasion of the publication of the libel no longer privileged to any extent, or would those portions of the libel which would have been within the protection of the privileged occasion, if they had stood alone and constituted the entire libel, still continue to be protected, the irrelevant matter not being privileged at all and furnishing possible evidence that the relevant portion was published with actual malice. In the absence of all guiding authority the latter would, in my opinion be more consistent with justice and legal principle, and I think it is ,in law, the true result.
And at p.348, Lord Shaw of Dunfermline said this:
If, accordingly, and in so far as the communication deals with matter not in any reasonable sense germane to the subject-matter of the occasion, the protection is gone: the occasion with its privilege does not reach a communication upon this foreign and totally unconnected matter. Further, the introduction of such matter into a communication otherwise protected by the occasion may sometimes (this is conceivable) have a bearing upon the issue of whether the other and protected matter was published with express malice.
In Horrocks v. Lowe, Lord Diplock, with whom Lord Wilberforce, Lord Hodson and Lord Kilbrandon agreed, said this at p.151:
The exception is where what is published incorporates defamatory matter that is not really necessary to the fulfilment of the particular duty the protection or the protection of the particular interest upon which the privilege is founded. Logically it might be said that such irrelevant matter falls outside the privilege altogether. But if this were so it would involve the application by the court of an objective test of relevance to every part of the defamatory matter published on the privileged occasion; whereas, as everyone knows, ordinary human beings vary in their ability to distinguish that which is logically relevant from that which is not and few, apart from lawyers, have had any training which qualifies them to do so. So the protection afforded by the privilege would be illusory if it were lost in respect of any defamatory matter which upon logical analysis could be shown to be irrelevant to the fulfilment of the duty or the protection of the right upon which the privilege was founded. As Lord Dunedin pointed out in Adam v. Ward [1917] A.C. 309, 326-327 the proper rule as respects irrelevant defamatory matter incorporated in a statement made on a privileged occasion is to treat it as one of the factors to be taken into consideration in deciding whether, in all the circumstances, an inference that the defendant was actuated by express malice can properly be drawn. As regards irrelevant matter the test is not whether it is logically relevant but whether, in all the circumstances, it can be inferred that the defendant either did not believe it to be true or, though believing it to be true, realised that it had nothing to do with the particular duty or interest on which the privilege was based, but nevertheless seized the opportunity to drag in irrelevant defamatory matter to vent his personal spite, or for some other improper motive, Here, too, judges and juries should be slow to draw this inference.
I note that in Bellino v. Australian Broadcasting Corporation (1996) 185 CLR 183, Dawson, McHugh and Gummow JJ said this at p.228:
It is true that, at common law, privilege only attaches to those defamatory imputations that are relevant to the privileged occasion. Where a potentially privileged communication consists partly of matters relevant to the privilege and partly to matters that are not relevant, qualified privilege only attaches to that part which is relevant to the occasion. Moreover, the inclusion of the irrelevant part in the communication forms evidence of malice and can destroy the privilege attaching to the relevant part.
Their Honours went on to quote part of the passage given above from Lord Finlay LC’s judgment in Adam v. Ward. It was submitted by Mr. McClintock that that passage indicated a rejection of what Lord Diplock said in Horrocks v. Lowe.
In my opinion, 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, and that the inclusion of such matter may also base an inference of malice which will deprive even the relevant part of the communication of the protection of privilege. 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 from Adam v. Ward and Horrocks v. Lowe do 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.
In the present case, I am not satisfied that the primary judge was wrong to hold that the defamatory part of the publication was not irrelevant to the subject matter of the privileged occasion. 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 relevant to occupational health and safety is put in a context. Certainly, the part complained about is not such as could possibly ground an inference of malice.
Turning to the third matter raised by Mr. McClintock, 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.
For example, if there was an enquiry by a prospective employer, who was considering placing a prospective employee in a position of trust, made of a person with knowledge of that prospective employee, and the person of whom the enquiry was made knew that the prospective employee had been convicted of an offence involving dishonesty, and that person honestly but mistakenly communicated to the prospective employer that the prospective employee had been convicted of obtaining money by false pretences, whereas the conviction was in fact for larceny by a servant, the qualified privilege would not in my opinion be lost because the communication happened to be an inaccurate report of court proceedings. Viewed in that way, in my opinion 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.
For those reasons, in my opinion the appeal fails.
NOTICE OF CONTENTION
Having regard to my decision on the other matter, it is not necessary to rule on the respondent’s Notice of Contention.
I would however note that there does appear to me to be some tension between the primary judge’s finding that the report in this case was not substantially true, and the finding that the respondent’s contextual imputations do not differ in substance from the appellant’s imputation. It would appear that the respondent’s contextual imputations are substantially true, in which case it seems to me that, if the appellant’s imputation is not substantially true, there must be a difference in substance between them.
In my opinion, the primary judge was not in error in not finding that the appellant’s imputation was true in substance: the indirectness of the involvement of the appellant’s company in the publication, coupled with the reference to the appellant rather than his company, are sufficient in my opinion to prevent the imputation being true in substance.
Accordingly, I think the respondent’s contextual implications do differ in substance from the appellant’s imputation, but in my opinion they are considerably weaker than the appellant’s imputation and do not satisfy the requirement of s.16(2)(c) that they are such that the appellant’s imputation did not further injure the appellant’s reputation. Accordingly, whether or not the respondent’s contextual implications are conveyed by the publication, the s.16 defence could not succeed.
CONCLUSION
The order I propose is that the appeal be dismissed with costs.
ROLFE AJA: I have had the advantage of reading in draft the judgment of Hodgson JA. His Honour has set out the relevant facts, issues and authorities.
I respectfully agree with his conclusion that the reciprocity, necessary to give rise to common law qualified privilege, was found by the learned trial Judge, and that his Honour’s findings in this regard should not be disturbed.
However, I respectfully disagree with Hodgson JA’s decision that the part of the article containing the imputation was within the protection of that privilege. The imputation, as his Honour has stated, was:
That the Plaintiff by publishing a false report concerning ACOHS Pty Limited had been found by the Federal Court of Australia liable to ACOHS Pty Limited in damages and costs for causing it harm and loss.
In my opinion, this imputation was not relevant to the privileged occasion in the manner in which the authorities, to which his Honour referred, and, in particular, the High Court’s decision in Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183, demand. 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. Accordingly, whilst I would, in general terms, agree with his Honour’s opinion in para 38 of his judgment, I am of the view that the wrong attribution of the publisher, in the circumstances of this case, is “truly unconnected with the subject matter of the occasion”.
In these circumstances, I do not agree that the incorrect statement of the publisher “really” did no more than 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.
I am also of the opinion that the appellant should succeed on his third submission. The authorities, to which his Honour refers, make 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”.
In the present case, 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. In my opinion, 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.
The orders I propose are that:
(i)            the appeal be allowed;
(ii)          the orders of Davies AJ be set aside;
(iii)         the appellant be granted a new trial limited to damages; and
(iv)the respondent pay the appellant’s costs of the appeal and have a certificate if otherwise qualified.

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LAST UPDATED: 12/12/2001

[2001] NSWCA 470

12 December 2001