Bass v McDonald and TCN Channel Nine Pty Ltd (No.7)

[2001] NSWSC 1026

Reported Decision: [2001] NSWSC 1026
[2001] ACL Rep 145 NSW 53

New South Wales

Supreme Court

CITATION:	Bass v McDonald & TCN Channel Nine Pty Ltd (No.7) [2001] NSWSC 1026
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 16791/90
HEARING DATE(S):	17 - 19 October 2001 22 & 23 October 2001 25 & 26 October 2001 29 - 31 October 2001 1 November 2001
JUDGMENT DATE:	21 November 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 "Qualified Protection - Excuse" under Queensland and Tasmanian legislation - whether lack of "good faith" an available reply in the case of publication of a riposte by a third party
LEGISLATION CITED:	Defamation Act 1889 (Queensland), s4 & s16
DECISION:	See paragraph 16 of the judgment.

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

Sperling J

Wednesday 21 November 2001

16791/90 Robin Bass v Thomas McDonald & TCN Channel Nine Pty Ltd Judgment (No.7 – Re construction and operation of Defamation Act 1889 (Queensland), s16(2))

: At a stage in the trial when the evidence was complete, subject only to the tender of some documentary material, a question arose concerning a statutory defence pleaded by the defendant in relation to publication in Queensland and Tasmania. (The common law defence of qualified privilege is not available in those states).

2 The legislation in the two states is identical. I dealt with the matter by reference to the Queensland statute. At that stage of the trial, publication in Tasmania was contentious. I subsequently ruled that there was no evidence of publication in that state.

3 The defence as ultimately pleaded, was as follows:

10. Further, and in the alternative, in answer to the FASC [the second further amended statement of claim], to the extent that it is found that the matter complained of was published in Queensland and/or Tasmania (which is not admitted) of and concerning the plaintiff (which is not admitted), conveyed the plaintiff’s imputations or any one or more of the plaintiff’s imputations (which is denied), and that the plaintiff’s imputations or any one or more of the plaintiff’s imputations are defamatory of the plaintiff (which is denied), the defendant says:
(a) the matter complained of was published, in good faith, for the purpose of giving information to the persons to whom the matter complained of was made with respect to subjects as to which those persons had such an interest in knowing the truth as to make the conduct of the defendant in publishing the matter complained of reasonable under the circumstances in order to answer or refute defamatory matter published by the plaintiff concerning the Building Workers Industrial Union.

4 The Defamation Act 1889 (Queensland) provides a defence of what is called “Qualified protection – excuse”. The following are the relevant provisions of the legislation:

4(1) Any imputation concerning any person, or any member of the person's family, whether living or dead, by which the reputation of that person is likely to be injured, or by which the person is likely to be injured in the person's profession or trade, or by which other persons are likely to be induced to shun or avoid or ridicule or despise the person, is called "defamatory" , and the matter of the imputation is called "defamatory matter" .
16(1) It is a lawful excuse for the publication of defamatory matter -
(g) if the publication is made in good faith in order to answer or refute some other defamatory matter published by the person defamed concerning the person making the publication or some other person;
. . . . .
(2) For the purposes of this section, a publication is said to be made in good faith if the matter published is relevant to the matters the existence of which may excuse the publication in good faith of defamatory matter; if the manner and extent of the publication does not exceed what is reasonably sufficient for the occasion; and if the person by whom it is made is not actuated by ill will to the person defamed, or by any other improper motive, and does not believe the defamatory matter to be untrue.

5 The defence was pleaded pursuant to s16(1)(g).

6 It was common ground that the question of good faith in s16(2) was for me rather than for the jury, and that there was a rebuttable presumption of good faith in favour of the defendant.

7 The argument began with an application by Mr Molomby for a ruling that certain issues of fact relevant to good faith be submitted to the jury. This was complemented by an application by Mr McClintock for a ruling that the plaintiff had no case in law for the absence of good faith.

8 On 1 November 2001, I made the following ruling (Transcript 391):

I hold that on the proper construction of the Defamation Act 1889, Queensland, and of the corresponding legislation of Tasmania that the matters relied on by the plaintiff as establishing lack of good faith within the meaning of the legislation would not in law establish a lack of good faith were they made out factually by reference to the defence pleaded under section 16(1)(g) of the Queensland legislation and the corresponding provision of the Tasmanian legislation.

I will give reasons for that decision at a later time. It follows that the element of good faith in the defence is assumed and that whether the defence is made out is a matter for me as the trial judge rather than for the jury.

9 No question accordingly arose concerning any subsidiary issue of fact for the jury. My reasons for the ruling are as follows.

10 Qualified privilege at common law was pleaded in relation to publication in other parts of Australia. I refer to my Judgment No.2 in these proceedings, in which I held that malice was not an answer in law to a defence of qualified privilege at common law where the defence was based on riposte by a third party. Section 16(1) of the Queensland legislation incorporates, in substance, the defence of qualified privilege at common law. Section 16(1)(g) relates to riposte. Section 16(2) incorporates, in substance, the common law concept of malice. The policy considerations which I took to be relevant to the availability of malice as an answer to the common law defence were relevant to the construction and operation of the Queensland legislation.

11 The plaintiff had not pleaded the absence of good faith in answer to the statutory defence; and the reply filed by the plaintiff was acknowledged, in earlier argument, to be limited to the defence of qualified privilege at common law. However, the argument proceeded on the basis that the plaintiff relied on the same considerations in answer to the statutory defence as it had done in relation to malice at common law.

12 In my view, s16(2) is to be construed as applicable to defences under s16(1) only so far as may be appropriate to the occasion.

13 One illustration will suffice. Section 16(1) provides a defence in various circumstances of which (g) is but one. Another is as follows:

(c) if the publication is made in good faith for the protection of the interests of the person making the publication, or of some other person, or for the public good.

14 This paragraph would accommodate cases of report and cases of passing on a complaint, to which I referred in my Judgment No.2. It cannot have been intended that in such cases, the defence would be answered by proof of the state of mind of the defendant concerning the truth or otherwise of the publication, or of knowledge on the part of the defendant that the third party was predominantly motivated by ill will or by some other improper motive.

15 Section 16(2) will accommodate this construction. The subsection does not define “good faith” or “a publication made in good faith”. There is no such definition in sections 3, 4 or 5 which are the definition sections. The subsection provides that, if the conditions specified exist, there is publication in good faith. It does not say that if something less than those conditions exist the publication is not in good faith. It says “if”. It does not say “if but only if”.

16 With the flexibility which this construction allows, I hold that s16(2) is inapplicable to a defence under s16(1)(g) where the riposte of a third party is the relevant publication.

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Last Modified: 11/23/2001