Bass v McDonald and TCN Channel Nine Pty Ltd (No.2)

[2001] NSWSC 955

CITATION:	Bass v McDonald & TCN Channel Nine Pty Ltd (No.2) [2001] NSWSC 955
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 16791/90
HEARING DATE(S):	17 - 19 October 2001 22 & 23 October 2001 25 October 2001
JUDGMENT DATE:	26 October 2001
PARTIES :	Robin Bass Thomas McDonald TCN Channel Nine Pty Ltd
JUDGMENT OF:	Sperling J at 1

COUNSEL :	Mr T Molomby with Mr R Rasmussen for the Plaintiff Mr B McClintock SC with Mr M Richardson for the Second Defendant
SOLICITORS:	William Oates Lawyers for the Plaintiff Gilbert & Tobin Lawyers for the Second Defendant
CATCHWORDS:	Defamation - defence of common law qualified privilege - riposte - malice - whether the defendant's state of mind concerning the truth or otherwise of the publication is an answer in law to the defence - whether the defendant's knowledge that the person on whose behalf the riposte was made was predominantly motivated by an intention to injure the plaintiff is an answer in law to the defence
CASES CITED:	Loveday v Sun Newspapers Ltd (1937) 59 CLR 503 Makin v John Fairfax & Sons Ltd [1973-96] A Def R [50,075]
DECISION:	See paragraph 26 of the judgment.

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
Defamation List

SPERLING J

Friday, 26 October 2001

16791/90 Bass v McDonald & TCN Channel Nine Pty Ltd

Judgment (No. 2)

: On Friday 19 October 2001, the jury found that certain of the alleged imputations were conveyed and were defamatory.

2 In the course of the argument on Monday 22 and Tuesday 23 October, I gave leave to the defendant to file an amended defence. I also gave leave to the plaintiff to file a further amended reply, which substituted new particulars of malice as pleaded in paragraph 2 of the document.

3 In argument, Mr Molomby, counsel for the plaintiff, made clear that averment of malice was confined to the defendant’s defence of common law qualified privilege.

4 The defendant contended that the plea of malice as particularised was not an answer in law to the defendant’s defence of common law qualified privilege. The leave to further amend the reply was given without prejudice to that argument. (At one stage the argument was categorised, at my suggestion, as one to strike out the relevant part of the further amended defence. Ultimately, however, the argument was categorised, by agreement, as an application for a ruling as stated at the commencement of this paragraph.)

5 The matter complained of was a television programme which included statements made on camera by the plaintiff, an erstwhile building contractor, and by a Mr McDonald, then state secretary of the BWIU. The plaintiff’s statement was to the effect that he was unfairly victimised by the union and driven out of business. The statements by Mr McDonald were to the effect that union action against the plaintiff was justified because, as the jury found the imputations, the plaintiff was a shonky operator who could not be relied on to pay his employees money due to them.

6 Obviously enough, the plaintiff’s plea of malice would arise for consideration by the jury only if the defence of common law qualified privilege were made out. That might not occur. Counsel, however, wished to have the question which was argued resolved at this stage for the purposes of the ongoing trial.

7 Three kinds of common law qualified privilege were particularised in separate numbered paragraphs in the amended defence. Of these paragraphs 1 and 3 have been withdrawn. Paragraph 2 is as follows.

2. Common Law – riposte to defamatory statement by plaintiff:

(a) On or about 16 July 1990, the plaintiff published to the defendant the following words (the charge) set out in lines 130 and 131 of the Schedule to the matter complained of:

“It was a personal vendetta as far as I was concerned against Robin Bass. Nobody else just Robin Bass.”


(b) In the context of the matter complained of, the charge was intended by the plaintiff to refer to, and is defamatory of, the BWIU.

(c) The plaintiff authorised and/or was privy to the broadcast of the charge by the defendant in the matter complained of.

(d) On or about 18 July 1990, Don McDonald (McDonald), at all relevant times the New South Wales Secretary of the BWIU to the charge by publishing to the defendant the words attributed to McDonald set out in lines 136 to 166 of the matter complained of (the riposte).

(e) The riposte was published by McDonald on behalf of the BWIU to the defendant pursuant to the BWIU’s right and interest to answer the charge.

(f) McDonald, on behalf of the BWIU, authorised and/or was privy to the broadcast of the riposte by the defendant in the matter complained of.

(g) The defendant published the matter complained of containing the charge and the riposte pursuant to a social or moral duty to do so and, specifically, to inform the public of the charge and riposte;

(h) The recipients of the matter complained of, or a substantial portion of them, had a reciprocal interest in receiving the matter complained of containing the charge and riposte;

(i) the defendant did not believe the matter complained of to be untrue;

(j) the defendant did not publish the matter complained of recklessly;

(k) the publication of the matter complained of, and the mode, manner and extent of the publication, were reasonable in the circumstances.

3. . . . . . .

8 Mr McClintock said that (i), (j) and (k) in paragraph 2 of the particulars are surplusage, his position being that they are not necessary elements of the defence.

9 The particulars of malice in the amended reply were as follows.

(a) The Defendant had no belief in the truth of what it published about the Plaintiff, in particular:

(i) that he was a “shonky operator”,
(ii) that he owed workers money,
(iii) that he got into a dispute with the union for that particular reason,
(iv) that he did not meet his legal obligations to members of the Building Workers’ Industrial Union.


(b) The Defendant was reckless as to the truth of what it published about the Plaintiff, in particular:

(i) that he was a “shonky operator”,
(ii) that he owed workers money,
(iii) that he got into a dispute with the union for that particular reason,
(iv) that he did not meet his legal obligations to members of the Building Workers’ Industrial Union.


(c) (i) the defendant knew that the Building Workers’ Industrial Union, for whom Mr McDonald was the spokesman in the matter complained of, was motivated by malice towards the plaintiff, in particular through the attitude and activities directed towards to plaintiff by its employee John Higgins.

(ii) the defendant knew that the source of what was said about the plaintiff by Mr McDonald in the matter complained of was Mr Higgins (see defendant’s discovered document 167 especially pages 18, 22, 28.).

(d) The Defendant believed that what it published about the Plaintiff was false, in particular:

(i) that he was a “shonky operator”,
(ii) that he owed workers money,
(iii) that he got into a dispute with the union for that particular reason,
(iv) that he did not meet his legal obligations to members of the Building Workers’ Industrial Union.

10 Malice comprehends any dominant and improper motive for making the publication including a motive to injure the plaintiff. Malice also comprehends the defendant’s state of mind in relation to the truth or falsity of the imputations conveyed as understood by the defendant. (The imputations as understood will not usually differ from the imputations found to have been conveyed.) For reasons which will appear, it is unnecessary, for the purposes of this case, to decide whether knowledge of falsity, lack of belief in truth or recklessness as to whether the imputations were true or false is the correct test.

11 In the present case, malice as particularised in paragraphs (a), (b) and (d) of the particulars in the further amended reply relate to the defendant’s state of mind concerning the truth or falsity of the imputations conveyed. Paragraph (c) asserts malice on the part of the defendant arising from knowledge of a dominant intention on the part of the BWIU to injure the plaintiff.

12 The species of common law qualified privilege averred in paragraph 2 of the defendant’s particulars is sufficiently identified by a passage from Loveday v Sun Newspapers Ltd (1937) 59 CLR 503. Latham CJ (at 514) quoted from Gatley on Libel and Slander, 2nd ed. (1929), p293, as follows:

“A person whose character or conduct has been attacked in the public press is entitled to appeal to the same tribunal in his defence and vindication, and if, in answering such attack, he makes relevant defamatory statements about the person who has attacked him, such statements are prima facie privileged.”

13 His Honour then said:

This principle protects both the person attacked and the proprietor of the newspaper which publishes his reply to the attack.

14 There appears to be no direct authority as to whether the defence of common law qualified privilege which arises in such a case is answered by an adverse state of mind concerning the truth or otherwise of what is said in the riposte. There are, however, analogies. In Makin v John Fairfax & Sons Ltd [1973-96] A Def R [50,075], Hunt J said (at 40,526):

"There is, in my view, one situation in which the defendant would definitely not have to prove his belief in the truth of what he published before his defence of statutory qualified privilege is established. That is the exceptional case where it is reasonable for the defendant to have reported, without endorsing it, a defamatory statement made by some other person. Such a situation would be analogous to the similarly exceptional case in which the common law does not require such a belief on the part of the defendant, where he is under a duty to pass on such statements without endorsing them: Clark v Molyneux (1877) 3 QBD 237 at 244; Horrocks v Lowe [1975] AC 135 at 150; and see, generally, Oldfield v Keogh (1941) 41 SR 206.”

The first class of case mentioned here is supported by Gatley on Libel and Slander, 9th ed, [16.17], the second by the authorities cited by his Honour.

15 The policy behind these exceptions is the protection of a legitimate interest - to make a report or to lodge a complaint – which would otherwise be obstructed if the publisher were under threat of action because of a state of mind concerning the truth or falsity of what was conveyed.

16 The same policy considerations apply to the legitimate interest in making a riposte.

17 The application of that policy to the publisher of a riposte would, of course, not apply to the author of the riposte any more than it would apply to the author of a complaint. Both would be amenable to loss of their defence by reason of knowledge that what was believed to be conveyed was false.

18 By analogy with the report and the complaint cases, I would hold that, the publisher of a riposte, who has the benefit of a defence of common law qualified privilege on that account, is not amenable to loss of the defence by reason of the publisher’s state of mind concerning the truth or otherwise if what is believed to be conveyed by the riposte.

19 It follows that malice as particularised in paragraphs (a), (b) and (d) of the particulars in the further amended reply do not answer the defence of qualified privilege as particularised in paragraph 2 of the particulars of that defence.

20 I come then to paragraph (c) of the particulars of malice. The case sought to be made under this particular was explained, as best as I have understood it, as follows:

· The BWIU was the party maligned by the plaintiff.

· Mr McDonald and Mr Higgins were servants of the BWIU.

· A riposte by BWIU (made by its servant and agent McDonald) was alleged by the defendant to be protected by common law qualified privilege.

· The riposte included assertions communicated to Mr McDonald (whether directly or indirectly) by Mr Higgins.

· Mr Higgins, in communicating those assertions (whether directly or indirectly to Mr McDonald), was, to the defendant’s knowledge, predominantly motivated by a desire to injure the plaintiff.

· Therefore, the defendant published a riposte by the BWIU knowing that it included assertions advanced by the BWIU with the predominant intention of injuring the plaintiff.

21 The last step in this approach is not self-evidently correct. But, however that may be, there is a more fundamental reason for disallowing the approach.

22 It is now well established that a defendant is not fixed with the malice of another person merely because that other person is a co-publisher. But none of the authorities cited are directed to the present situation, where it is asserted that the defendant, as a publisher of a riposte, allegedly knew that the person making the riposte was predominantly motivated by an intention to injure the plaintiff. Again, there appears to be no authority directly in point.

23 Again, I would proceed by analogy with the case of a defendant under a duty to pass on a complaint. In such a case, the defendant ought no more to be amenable to losing his or her defence because of knowledge of a predominant intent to injure on the part of the complainant, than because of a state of mind concerning the truth or otherwise of the complaint.

24 For the same reasons of policy, a publisher should not be amenable to losing its defence because of knowledge that the person making the riposte or on whose behalf the riposte is made is predominantly motivated by intention to injure.

25 That deals with paragraph (c) of the particulars of malice.

26 For these reasons my ruling is that paragraph 2 of the further amended reply does not provide an answer in law to the defendant’s defence of common law qualified privilege (if established), as particularised in paragraph 2 of the particulars of the common law qualified privilege in the defendant’s amended defence.

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Last Modified: 10/29/2001