Bass v TCN Channel Nine Pty Ltd

[2003] NSWCA 118

Reported Decision: 60 NSWLR 251

Court of Appeal

CITATION:	Bass v TCN Channel Nine [2003] NSWCA 118
HEARING DATE(S):	21 October 2002
JUDGMENT DATE:	20 May 2003
JUDGMENT OF:	Spigelman CJ at 1; Handley JA at 48; Wood CJatCL at 150
DECISION:	Appeal allowed. Orders made.
CATCHWORDS:	DEFAMATION - malice - answer to public attack - media's knowledge of falsity of answer and malice of target capable of establishing malice in media - DEFAMATION - qualified privilege - television station orchestrating confrontation entitled to derivative privilege of target
CASES CITED:	Adam v Ward [1917] AC 309 Australian Broadcasting Corporation v Comalco (1986) 12 FCR 510 Blackshaw v Lord [1984] QB 1 CA, 27 Clark v Molyneux [1877] 3 QBD 237 Dawson v Dover & Country Chronicle Ltd (1913) 108 LT 481 Derry v Peek (1889) 14 App Cas 337 Dougherty v Chandler (1946) 46 SR (NSW) 370 Egger v Viscount Chelmsford [1965] 1 QB 248 CA Godfrey v Henderson (1944) 44 SR (NSW) 447 Horrocks v Lowe [1975] AC 135 Loveday v Sun Newspapers Limited (1938) 59 CLR 503 Makin v John Fairfax and Sons Ltd (1990) A Def R 40, 526 Mowlds v Fergusson (1939) 40 SR (NSW) 311 Norton v Hoare (No 1) (1913) 17 CLR 310 Oldfield v Keogh (1941) 41 SR (NSW) 206 Penton v Calwell (1945) 70 CLR 219 Pervan v The North Queensland Newspaper Co Ltd (1993) 178 CLR 309 Quinn v Leathem [1901] AC 495 Radio 2UE Sydney Pty Limited v Parker (1992) 29 NSWLR 448 Roberts v Bass (2002) 77 ALJR 292 Stephens v Western Australian Newspapers Ltd (1994) 192 CLR 211 Telnikoff v Matusevitch [1992] 2 AC 343 Theophanos v Herald & Weekly Times Ltd [1994] 182 CLR 104 Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 Waterhouse v Station 2GB Pty Ltd (1985) 1 NSWLR 58, 67
PARTIES :	ROBIN BASS v TCN CHANNEL NINE PTY LIMITED
FILE NUMBER(S):	CA 41064/01
COUNSEL:	Appellant: T Molomby SC/RKM Rasmussen Respondent: B R McClintock SC/M F Richardson
SOLICITORS:	Appellant: V Kalantzis Respondent: Gilbert & Tobin

LOWER COURTJURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	SC 16791/90
LOWER COURT JUDICIAL OFFICER :	Sperling J

41064/01
SC 16791/90
SPIGELMAN CJ
HANDLEY JA
WOOD CJ at CL


20 May 2003

ROBIN BASS v TCN CHANNEL NINE PTY LIMITED

DEFAMATION – MALICE – ANSWER TO PUBLIC ATTACK – MEDIA’S KNOWLEDGE OF FALSITY OF ANSWER AND MALICE OF TARGET CAPABLE OF ESTABLISHING MALICE IN MEDIA

DEFAMATION – QUALIFIED PRIVILEGE – TELEVISION STATION ORCHESTRATING CONFRONTATION ENTITLED TO DERIVATIVE PRIVILEGE OF TARGET

The appellant sued TCN Nine for defamatory imputations published in the course of a programme “Industrial Muscle” broadcast on Sixty Minutes in 1990. The programme included an attack by the appellant, a former brick-laying sub-contractor, on the Building Workers’ Industrial Union, and the Union’s reply through its Secretary, Mr Don McDonald. The jury found for the appellant on one imputation and awarded damages, but the trial Judge upheld a defence of common law qualified privilege and entered judgment for TCN Nine. During the trial the Judge had struck out the appellant’s reply of malice as legally unsustainable. The appellant appealed on both issues by leave.

HELD: (1) per curiam The Judge’s finding that the occasion was one of qualified privilege was correct. The Union was entitled to qualified privilege for its reply to the appellant’s public attack during the programme and TCN Nine had the benefit of a derivative privilege for the purpose of publishing that reply. The fact that TCN Nine instigated the attack, orchestrated the confrontation, and was in control of the situation did not exclude its derivative privilege despite the potential for abuse. Loveday v Sun Newspapers Ltd (1938) 59 CLR 503 applied. (2) By majority, Spigelman CJ dissenting, the trial Judge erred in rejecting the appellant’s reply of malice in so far as it alleged that TCN Nine knew that the Union was motivated by malice and believed that what it published about the appellant was false. Australian Broadcasting Corporation v Comalco Ltd (1986) 12 FCR 510 and Roberts v Bass (2002) 77 ALJR 292 applied. (3) By majority, Spigelman CJ dissenting, the appellant was entitled to a new trial on the issues of malice and damages.

ORDERS

(1) Appeal allowed;

(2) Judgment for the defendant in the action with costs set aside;

(3) Order that there be a new trial of the action limited to the issues of malice raised by paras 2 (c) and (d) of the plaintiff’s further amended reply of 23 October 2001 and the issue of damages in respect of the imputation pleaded in para 5 (e) of the plaintiff’s second further amended statement of claim of 18 April 2000;

(4) The respondent to pay three quarters of the appellant’s costs of the appeal and cross-appeal;

(5) The costs of the first trial are to abide the decision of the Judge presiding at the second.

IN THE SUPREME COURT

41064/01
SC 16791/90
SPIGELMAN CJ
HANDLEY JA
WOOD CJ at CL


20 May 2003

ROBIN BASS v TCN CHANNEL NINE PTY LIMITED

Judgment

1 SPIGELMAN CJ: In this matter I have read the judgment of Handley JA in draft. His Honour outlines the issues that arise.

2 As to the first issue, concerning the existence of qualified privilege in the form of a reply to an attack, I agree with Handley JA. Mr T Molomby SC, who appeared for the Appellant, identified two matters which he submitted were such as to deprive the Respondent of the ability to rely on this form of privilege about which I wish to make additional observations.

3 The first was that the interviewee who replied to the attack, and whose reply was published, did not at the time of the reply have available to him the full contents of the attack to which he purported to reply. In my opinion, this does not deprive a defendant of the ability to rely on the defence where the reply has the requisite connection to the attack, e.g. that it was “relevant” to the attack (see e.g. Loveday v Sun Newspapers Limited (1938) 59 CLR 503 at 516.1 per Starke J), or where the reply could “justify or explain the course taken or remove or mitigate the effect of the attack” (at 519.2 per Dixon J).

4 The second matter raised by Mr Molomby SC turned on the proposition that the Respondent had solicited the attack in the sense that the Appellant did not institute the programme during the course of which the Appellant’s comments constituting the attack were published. Although the Appellant was approached by the Respondent, there was no doubt that the Appellant made the attack knowing and intending that it be published. That, in my view, is sufficient in the circumstances to create a privileged occasion for the publication of a reply.

5 The issue that arises in the case of the kind of privilege here under consideration is whether or not the attacker authorised the publication by the third party. (See e.g. Loveday at 510, 512, 523, 525). The question of who may have instigated the publication is irrelevant to the existence of that privilege. Indeed, in Loveday itself, the newspaper did not publish the attack as a letter to the editor, being the form in which it was submitted by the attacker. Rather, it published an article in which both the attack and the riposte were published. The privilege still existed.

6 The ancillary privilege which the law accords to the media to publish a reply by a person attacked manifests the conflicting interests which the law of defamation must balance. It is the legal mechanism by which media organisations are able to provide balance to their stories and inform viewers or readers of competing views. This function is not well served by the drawing of the fine distinctions upon which the Appellant sought to rely.

7 The Appellant’s Reply to the defence of qualified privilege in the form of response to an attack asserted that the Respondent was actuated by express malice in publishing the matter complained of. As Handley JA notes, the particulars supplied were fourfold:

(a) The Defendant had no belief in the truth of what it published.

(b) The Defendant was reckless as to the truth of what it published.

(c) The Defendant knew that the Building Workers’ Industrial Union spokesman was motivated by malice towards the Plaintiff.

(d) The Defendant believed that what it published about the Plaintiff was false.

8 After judgment in this case was reserved, the High Court handed down judgment in Roberts v Bass (2002) 77 ALJR 292. This judgment considerably clarified the applicable law. The reasoning of the Court would have led to the rejection of the adequacy of the matters hitherto particularised as (a) and (b) set out in par [7] above, had those particulars not been confined for the purposes of the particular kind of qualified privilege presently under consideration.

9 In oral submissions, Mr Molomby SC did not rely on particulars (a) and (b) as separate grounds justifying a conclusion of express malice. Rather, each of (a) and (b) were said to be steps along the way to drawing the conclusion expressed in each of (c) and (d). Mr Molomby SC accepted that in the case of the kind of qualified privilege here relied upon, an absence of belief in the truth, or recklessness, was not sufficient to establish malice. As I have indicated, the subsequent judgment in Roberts v Bass confirms the validity of this concession.

10 This is a case about adequacy of particulars. Mr B McClintock SC, who appeared for the Respondent, emphasised that no attempt was made to reformulate particulars at any time after Sperling J struck out the original particulars. The issue before the Court is a narrow one. The particulars struck out do not contain any statement asserting that the Respondent published the matter complained of for any specified purpose or motive, which purpose or motive was not within the occasion of the privilege. The issue before this Court is whether, in the absence of any such particular, his Honour was justified in concluding that particulars (c) and (d) above could not constitute disentitling malice.

11 Roberts v Bass reaffirms the basic nature of the defence of qualified privilege as a protection which is lost if there is a purpose or motive foreign to the occasion of the privilege and that other purpose or motive actuates the making of the defamatory statement. (See, for example, the first two sentences of [75] and the first two sentences and the last sentence of [76]). The proposition is affirmed at [79] and at [104] where the authors of the joint judgment said:

“[79] … malice means a motive for, or a purpose of, defaming the plaintiff that is inconsistent with the duty or interest that protects the occasion of the publication. It is the motive or purpose for which the occasion is used that is ultimately decisive, not the defendant’s belief in the truth of the matter.”
“[104] … in considering whether the plaintiff has proved malice, it is necessary that the plaintiff not only prove that an improper motive existed but that it was the dominant reason for the publication.”

12 Each category of qualified privilege must be assessed separately in this regard. As Lord Diplock said in Horrocks v Lowe [1975] AC 135 at 149, in a passage which does not require any qualification in the light of Roberts v Bass:

“… in all cases of qualified privilege there is some special reason of public policy why the law accords immunity from suit – the existence of some public or private duty, whether legal or moral, on the part of the maker of the defamatory statement which justifies his communicating it or of some interest of his own which he is entitled to protect by doing so. If he uses the occasion for some other reason he loses the protection of the privilege.”

13 The “special reason of public policy” to which Lord Diplock referred, differs from one category of qualified privilege to another.

14 The basis of the privilege of reply to an attack is set out in Penton v Calwell (1945) 70 CLR 219, where Dixon J said at 233-234:

“When the privilege of the occasion arises from the making by the plaintiff of some public attack upon the reputation or conduct of the defendant or upon some interest which he is entitled to protect, the purpose of the privilege is to enable the defendant on his part freely to submit his answer, whether it be strictly defensive or be by way of counter-attack, to the public to whom the plaintiff has appealed or before whom the plaintiff has attacked the defendant. The privilege is given to him so that he may with impunity bring to the minds of those before whom the attack was made any bona fide answer or retort by way of vindication which appears fairly warranted by the occasion …
The foundation of the privilege is the necessity of allowing the party attacked free scope to place his case before the body whose judgment the attacking party has sought to affect. In this instance, it is assumed to be the entire public. The purpose is to prevent the charges operating to his prejudice. It may be conceded that to impugn the truth of the charges contained in the attack and even the general veracity of the attacker may be a proper exercise of the privilege, if it be commensurate with the occasion.”

15 This public policy can be availed of by a third party publisher, such as the media, which has a privilege ancillary to that of the person replying to the attack. As Dixon J put it in Loveday at 519:

“The reason for the privilege of the newspaper publisher is that it is right and for the common convenience and welfare of society that he should lend the aid of his newspaper to the party who is entitled publicly to repel the attack or answer the criticism.”

16 In Roberts v Bass the joint judgment of Gaudron, McHugh and Gummow JJ concluded that where a publisher knew that a defamatory statement was false, that would “ordinarily” or “almost invariably” be or “almost” constitute “conclusive evidence” that a publication was actuated by an improper motive (see Roberts v Bass, pars [76], [77], [78], [83] [87] and [98]).

17 By reference to the authorities upon which Sperling J relied by way of analogy in the present case (Clark v Molyneux [1877] 3 QBD 237 and other cases listed in footnote 55), the joint judgment in Roberts v Bass said at [76]:

“Even knowledge or a belief that the defamatory statement was false will not destroy the privilege, if the defendant was under a legal duty to make the communication. In such cases, the truth of the defamation is not a matter that concerns the defendant, and provides no ground for inferring that the publication was actuated by an improper motive.”

18 The reference to “legal duty” was repeated at [83]:

“In our opinion, neither lack of honest belief nor knowledge of falsity ipso facto destroys a defence of qualified privilege. But knowledge of falsity is ‘almost conclusive evidence’ of improper motive, except where the defendant is under a legal duty to publish the defamation.”

19 Although pars [76] and [83] of the joint judgment in Roberts v Bass refer to a “legal duty” to communicate as the only instance in which knowledge of falsity is not conclusive evidence of improper purpose, I do not believe their Honours were intending to be exhaustive. The numerous references to “almost conclusive” etc. suggest that there are other examples.

20 I do not understand their Honour’s reference to “legal duty” to exclude other forms of duty. In the field of qualified privilege legal, social and moral duties are treated as equivalent. (See e.g. Adam v Ward [1917] AC 309 at 334). Publication of a riposte by a third party who has also published the attack is supported in the language of “social duty”. (See for example Loveday at 525).

21 The issue that falls for determination in the present case under particular (d), is whether or not, as Sperling J concluded, there is an equivalence between a duty to communicate and a case where a third party publishes a riposte to an attack. In such a case can it also be said that “the truth of the defamation is not a matter that concerns” the third party publisher, or that knowledge of falsity is not “conclusive evidence” of improper motive?

22 Handley JA refers to the judgment of the Full Federal Court in ABC v Comalco Limited (1986) 12 FCR 510, as an authority establishing the proposition that publication by a third party of material known to be false constitutes malice. There are statements in the judgment that support such a proposition.

23 Smithers J expressed the proposition in three ways:

“(i) To publish such material knowing it to be untrue would be to abuse the occasion. (544.7)
(ii) …it would not be acceptable and almost inevitably would constitute conclusive evidence of malice to publish statements known by the publisher to be untrue or to be unworthy of credence, even although they are contradicted on the same program by a person having a contrary interest. (547.8)
(iii) But if the appellant used the occasion to publish what it knows to be untrue there is an abuse of that occasion.” (550.3)

24 The first and third way of expressing the point suggest an absolute proposition which is not, in my opinion, consistent with the reasoning of the High Court in Roberts v Bass. The second way that Smithers J expressed the proposition, i.e. “almost inevitably would constitute conclusive evidence of malice” is in virtually identical terms to that of the joint judgment in Roberts v Bass.

25 To treat knowledge of falsity as necessarily conclusive, as distinct from “almost inevitably” conclusive, is to regard such knowledge as itself a kind of malice, as distinct from treating it as a basis for inferring an improper motive for publication, and is, in my opinion, contrary to the reasoning of the High Court in Roberts v Bass (see esp at [77]-[78]).

26 This is a case in which a third party publisher has provided, relevantly, a neutral forum for opposing views. It has not represented the reply to be true. Its publication was, therefore, made on the occasion of the ancillary privilege to which it was entitled.

27 A person who has published an attack may well feel obliged to publish the position of the other side irrespective of what he or she knows about the truth of the riposte or the motives for making it. The social duty underlying the ancillary privilege is not served if a third party publisher suppresses a reply to an attack because he or she has formed a view about the truth or falsehood of the statements made or the motives of those who made them. Although knowledge of falsity may constitute evidence of malice, it is not, in the context of a third party publishing a reply to an attack, necessarily conclusive. A case of malice so particularised is not, in my opinion, complete.

28 In Mowlds v Fergusson (1939) 40 SR (NSW) 311 in a passage the last sentence of which was quoted with approval in Roberts v Bass at [98], Sir Frederick Jordan said at 329:

“In order that malice on one occasion may supply evidence of malice on another, the malice proved must be a desire to serve a purpose or to indulge a feeling which may fairly be inferred to have existed on the other occasion also and to have animated the defendant on that occasion also. In some cases, it may be possible to supply evidence that a privileged occasion has been used for an unauthorised purpose without establishing what the unauthorised purpose was. Thus, as has been pointed out, where a person makes a statement defamatory of the plaintiff and it is proved that when he made it he knew it to be false, the fact that he made a wilfully false and defamatory statement about the plaintiff shows (save in certain exceptional cases) that it must have been made for some improper purpose. It could not have been for a purpose warranted by any privilege; and hence it is unnecessary to determine what the exact purpose was in order to ascertain whether the privilege has been lost for the particular defamatory statement which has been proved to be wilfully false.”

29 In my opinion, a third party publishing a reply to an attack is one of these “exceptional cases” (terminology which Jordan CJ had also employed at 327) which is the reciprocal of the proposition adumbrated in Roberts v Bass in terms of “almost conclusive evidence” etc. The “almost” of the latter is equivalent to the “exceptional” of the former.

30 In this context an assertion of knowledge of falsity is not, in my opinion, sufficient. The particulars must assert, to use Sir Frederick Jordan’s language, “what the unauthorised purpose was”. They did not and were correctly struck out.

31 The matter raised by particular (c) is quite distinct. Particular (c) states:

“(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 the 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).”

32 The particular identified in par (c)(i) expresses a proposition which does not reflect terminology that resonates in the case law. It appears to assert that malice can be made out on the basis of knowledge that the person replying to the attack was actuated by malice.

33 Particular (c) is, in my opinion, defective as it does not assert that the statement made by Mr McDonald was in fact actuated by the improper purpose or motive. (cf Roberts v Bass [75] first two sentences, [76] at fn 56 and [104] first sentence). Mr McClintock SC embraced this proposition.

34 It is not enough to state, as particular (c)(i) does, that a person had a particular motivation, unless that motivation was the actuating purpose of the defamatory statement. Latham CJ and Williams J made a similar point on appeal in Penton v Calwell at 245.6:

“An object or purpose of self-defence may co-exist with an object or purpose of attacking a traducer. It is the former element which is relevant in relation to the defence of qualified privilege, and it does not cease to exist simply because the latter element also exists.”

35 To similar effect are the observations of Jordan CJ in Godfrey v Henderson (1944) 44 SR (NSW) 447 at 454, quoted with approval in Roberts v Bass at [104], that what is required is evidence that “… as a matter of commonsense, point[s] to the actual existence of some express malice which was really operative in the making of the statement”.

36 Alternatively, Mr McClintock challenged the proposition that knowledge of actuating malice on the part of the person replying would of itself deprive the third party publisher of the privilege.

37 As the privilege of the third party publisher is a derivative privilege, the Appellant’s contention is based on an implicit argument that a stream cannot rise higher than its source. I do not agree. For the reasons I have outlined above, the purpose of the ancillary privilege of a third party-publisher who has published an attack is to provide a neutral forum for a reply so that the audience to which the person who now complains had addressed the original attack may hear the actual rely, being a reply that has the requisite connection with the attack.

38 Some support for the Appellant’s submission can be discerned in the reasoning of Dixon J in Loveday at 519:

“A privilege would be of no value if the means of exercising it were not also protected. If the party attacked is given a privilege to reply through the public press, the publisher of a newspaper who allows the use of his columns for the purpose must also enjoy an attendant privilege . Thus, if a prior attack had been made publicly upon the municipal council’s treatment of a relief worker, the publisher of a newspaper would obtain protection for the publication in his journal of any relevant reply the town clerk might honestly make. But the privilege of the newspaper would arise out of and depend upon that of the town clerk , or, perhaps more strictly, of the municipal council, as the party attacked and entitled to reply. The reason for the privilege of the newspaper publisher is that it is right and for the common convenience and welfare of society that he should lend the aid of his newspaper to the party who is entitled publicly to repel the attack or answer the criticism.” (Emphasis added.)

39 In this passage Dixon J was concerned with the existence of a privileged occasion in the sense of whether a right to reply had arisen. He was not concerned with the loss of the privilege when the exercise of the right to reply was actuated by an improper purpose.

40 The relevant approach is as put by Dixon J in Loveday at 525:

“… if he authorised the publication in the press of the letter composed by the secretary of the unemployed relief council, he instigated a course which the defendant newspaper company could not follow, except at the cost of incurring a duty of propriety to publish the answer. It seems just, therefore, to regard the action of the publisher of the newspaper as performing what so far as the plaintiff is concerned, amounts to a social duty. For although it need not have acted on his invitation or request at all, when it did so, it ought, in fairness, to receive and publish any reasonable reply offered. … the request of the plaintiff to publish an attack, if proved, would complete a set of circumstances in which the newspaper proprietor would be privileged in respect of a publication defamatory of the plaintiff made at the instance of the Town Clerk as a relevant reply to the criticism of his council.”

41 The privilege of the third party publisher is not based on the motive of the person who replies to the attack. It is based on the implicit consent by the attacker to the publication of a riposte.

42 The extracts from Loveday at 519 and 525 quoted above refer to a “relevant reply” or a “reasonable reply”. It may be that in some, perhaps most, circumstances falsity will lead to the conclusion that a reply was not published on a privileged occasion. That will be the case if the third party represents the content of a reply as true. Furthermore, where a third party publisher knows of the falsity it may be that its further publication is not made on a privileged occasion. The same may be the case where the third party is aware of an improper motive on the part of the person replying to an attack. Such a conclusion would disentitle the person or third party from relying on a defence of qualified privilege. That is not the issue before this Court. The issue is whether a defence expressed in terms of a publication having been actuated by express malice can be made out by either or both particulars (c) and (d).

43 In the case of each particular, knowledge of falsity and/or knowledge that the person who replies to the attack was actuated by malice, may be evidence of an improper purpose or motive on the part of a third party publisher. It does not, however, constitute of itself such a purpose or motive.

44 Neither alone, nor in combination, do particulars (c) and (d) constitute a statement of purpose or motive, let alone one that is foreign to the occasion of privilege under consideration in this case. Each proposition, if established, may constitute evidence from which an inference of an improper motive may be drawn. However, the particulars as supplied did not go far enough.

45 There was no particular of an improper purpose or motive, nor of a state of affairs which would, if established, constitute of itself an improper purpose or motive with respect to the particular head of privilege here under consideration.

46 Particulars of malice are required under Pt 67 r19(a). My conclusion in these proceedings, however, is based on the broader principle underlying the provision of particulars: to inform the other party of the case that will be made against it. It is always permissible to state the conclusion which the particulars provided will establish. In a context such as the present, in my opinion, it is not only permissible but required. A third party publisher of a reply to an attack will not know the case that it has to meet in this regard unless its own improper motive is identified.

47 In my opinion, the appeal should be dismissed with costs.

48 HANDLEY JA: This is an appeal by the plaintiff by leave from a judgment entered for TCN Channel 9 Pty Limited (TCN) following the trial of a defamation action before Sperling J and a jury. TCN which succeeded has filed a cross-appeal which the Court only has to consider if it decides that it should order a new trial. The action arose from the television programme, “60 Minutes”, on Sunday 1 August 1990. The relevant part of the programme, entitled “Industrial Muscle”, was prompted by the decision of the Government of New South Wales to establish a Royal Commission to investigate the building industry.

49 This part of the programme featured, among others, the plaintiff, a former bricklaying subcontractor, who at one stage had 185 employees but was then out of business. He claimed that this was the result of a black ban by the Building Workers’ Industrial Union (the Union) as part of a personal vendetta by one of its organisers. This allegation was put by Mr Munro, the television journalist and presenter, to Mr Don McDonald, the New South Wales Secretary of the Union. The latter’s statements justifying the Union’s actions conveyed the defamatory imputations that gave rise to the proceedings.

50 The plaintiff sued in 1990, but sued the wrong Mr McDonald, and his attempt to join the right Mr McDonald outside the limitation period failed. The action proceeded against TCN alone.

51 The second further amended statement of claim pleaded (para 5) five imputations arising from the matter complained of, and sought damages for the broadcasting of the programme in every State and Territory.

52 The jury found that the following imputations only were conveyed and were defamatory:

(a) The Plaintiff was a shonky operator;

(e) The plaintiff could not be relied on to pay his employees money due to them.

53 TCN pleaded a number of defences, including truth and qualified privilege, at common law and by statute. The plaintiff raised malice in reply to the pleas of common law and statutory qualified privilege. The Judge, in an interlocutory ruling on 26 October 2001 during the trial before evidence was called on the issue, held that the reply of malice, as pleaded, was not in law an answer to TCN’s pleas of qualified privilege and took the issue away from the jury. The jury upheld a defence of truth to imputation (a), but rejected all defences left to them in respect of imputation (e) and awarded the plaintiff $10,000 damages.

54 The defence of qualified privilege based on the “right” of a person who has been publicly attacked to defend himself in the same forum did not raise any disputed question of fact and was for the trial Judge alone. In a reserved judgment on 21 November 2001 he upheld the defence and entered judgment for TCN.

55 The plaintiff appealed, by leave, and challenged the decisions of the trial Judge on the issues of malice and qualified privilege.

56 The Judge’s ruling on the issue of malice was given before his ruling on qualified privilege, but logically the question of qualified privilege should be considered first.

57 The plaintiff was interviewed by TCN staff on 16 July 1990 and Mr McDonald was interviewed the following day when selected extracts from the interview with the plaintiff were put to him for comment. The programme that went to air contained extracts from the interview with the plaintiff attacking the Union, and extracts from the interview with Mr McDonald giving the Union’s reply.

58 The common law has long recognised that a person who has been publicly attacked is entitled to defend himself before the same forum and to do so under qualified privilege. Adam v Ward [1917] AC 309; Norton v Hoare (No 1) (1913) 17 CLR 310; Loveday v Sun Newspapers Ltd (1938) 59 CLR 503 (Loveday); Penton v Calwell (1945) 70 CLR 219. The earliest cases involve replies to attacks that had already been published, but in Loveday the newspaper published a letter to the editor which attacked a local council together with the latter’s response.

59 Starke J explained this head of qualified privilege in Loveday, at 515:

“A man who attacks another in or through a newspaper cannot complain if that other repels or refutes the attack for the purpose of vindicating himself. He has appealed to the public and provoked or invited a reply. A person attacked has both a right and an interest in repelling or refuting the attack, and the appeal to the public gives it a corresponding interest in the reply”.

60 TCN itself was not attacked, and did not have any privilege in its own right (Loveday at 514 per Latham CJ). The Union had the privilege, but the media enjoy a derivative privilege for the reasons explained by Dixon J in Loveday at 519:

“If the criticism has been addressed to the public at large ... the privilege would cover a publication of the answer in the newspaper or in any other manner that would reach the public generally. A privilege would be of no value if the means of exercising it were not also protected. If the party attacked is given a privilege to reply through the public press, the publisher ... must also enjoy an attendant privilege”.
See also Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448, 459-61.

61 Mr Molomby SC’s argument for the plaintiff was that TCN was not entitled to a derivative privilege because, having instigated the plaintiff ’s attack and orchestrated the confrontation, it was the primary party in the publication of the attack.

62 He emphasised the dominant position of a television station in this and comparable situations. It can seek out persons willing to make a public attack on some target selected by the station for its own reasons. Having obtained the necessary film footage it can decide whether to communicate the attack to the target or do nothing. It can control the manner and timing of any attack, and select the parts it will put to the target.

63 Having put the attack to the target in whole or in part, it can then decide whether it will put the confrontation to air or let the matter drop. If it decides to use the material it can decide what parts will be included in the programme. Thus, subject to the question of consent, the station has complete control, not only over the “playing field”, but also over the material included in the programme.

64 The editing can tilt the “playing field” in favour of one party or the other. The station can select the weakest part of the attack and the strongest part of the reply or vice versa. Its control over the programme enables it to select the party who will be the attacker and the party who will be the target, and bestow qualified privilege on the party of its choice.

65 All this is true, but if, as the plaintiff claimed, he had been driven out of the industry by the personal vendetta of a Union organiser he was the natural attacker. The Union had won its battle with the plaintiff and was the natural target for his counter-attack.

66 The plaintiff wanted to publicise his claims about the alleged abuse of Union power which occurred in his case. No doubt he hoped that the Royal Commission would investigate his complaints and he would be called to give evidence. A televised public affairs programme, such as 60 Minutes, was an ideal forum for his purposes.

67 The Union, on the other hand, had no interest in making a public attack on the plaintiff and drawing attention to his allegations. TCN, in putting together this programme in which the plaintiff was the attacker and the Union the target, did not distort the natural relationship between those parties.

68 The plaintiff’s attack was published with his consent. He knew he was being interviewed for television and consented to his interview being put to air, and he allowed TCN, in its discretion, to select those parts which would be included in the programme. He might have claimed the right to review the programme before it went to air, but did not do so, and TCN’s attitude to such a claim is not known.

69 In Loveday Latham CJ held (512) that the plaintiff had “authorised Sun Newspapers Ltd as his agent to publish the statement of which complaint is made” (emphasis supplied), and Starke J (516) and Dixon J (525) held that simultaneous publication of the attack and the answer made no difference. Dixon J said (521) that the newspaper would have no privilege “if ... without any consent, invitation or incitement from the plaintiff ... [it] published at one and the same time the criticism or attack upon the Municipal Council ... and the Town Clerk’s reply ...”.

70 Dixon J continued (523):

“... a finding that the plaintiff consented to the sending of the secretary’s letter to the press and authorised its publication ... would mean that he was a responsible agent in the publication of the attack which evoked the defence containing the defamatory matter of which he complains. It would mean that he gave to the defendant Sun Newspapers Ltd an authority to publish the attack or criticism upon which it could not act with propriety unless it opened the columns of its newspaper to any reasonable answer that might be made”.
He continued at 525:

“... if he authorised the publication in the press of the letter ... he instigated a course which the defendant newspaper company could not follow, except at the cost of incurring a duty of propriety to publish the answer ... The request of the plaintiff to publish an attack ... would complete a set of circumstances in which the newspaper proprietor would be privileged in respect of a publication defamatory of the plaintiff made at the instance of the Town Clerk as a relevant reply to the criticism of his Council”.

71 A television broadcaster’s control over the content of programmes such as 60 Minutes gives it ample scope for manipulation. It could present a one-sided contest by minimising the attack and maximising the reply or vice versa. The attack or answer, as presented to the public, could be weakened by omitting parts which gave it credibility.

72 A television station which inverted the natural relationship between the attacker and the target, or manipulated the content of the programme to produce a one-sided contest in favour of one party or the other, may well be found to have acted out of malice to the party disadvantaged. However neither authority nor principle requires this Court to hold that the mere potential for abuse destroys the derivative privilege of the media.

73 There is ample scope for abuse in every category of qualified privilege, but the privilege is only lost if it has actually been abused.

74 In my judgment therefore TCN had the benefit of derivative qualified privilege when it published the Union’s reply to the plaintiff’s attack and the judgment of Sperling J on this issue of 21 November 2001 was correct.

75 It is now necessary to consider the Judge’s interlocutory ruling of 26 October 2001 that the plaintiff ’s particulars of malice were not in law an answer to TCN’s plea of qualified privilege.

76 The plaintiff ’s further amended reply alleged (par 2) that in publishing the matter complained of TCN was actuated by express malice. The particulars of this allegation, as pleaded, were that: (a) TCN had no belief in the truth of what it published, (b) it was reckless as to the truth of what it published, (c) it knew that the Union was motivated by malice, and (d) believed that what it published about the plaintiff was false.

77 The issue of the Union’s malice against the plaintiff has not been tried, but there is no doctrine of transferred malice in the law of defamation apart from the ordinary principles of vicarious liability: Dougherty v Chandler (1946) 46 SR (NSW) 370; Egger v Viscount Chelmsford [1965] 1 QB 248 CA.

78 The publisher of a public affairs programme such as 60 Minutes does not necessarily take a position of its own when it presents different views on some topic of public interest, and viewers do not understand that it is necessarily doing so. It will be a question of fact in every case whether the media has taken a position on an issue. Sometimes this is clear: Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448, 460-1. In Australian Broadcasting Corporation v Comalco Ltd (1986) 12 FCR 510, 544 Smithers J said:

“... television debates on matters of public interest are an accepted method by which the television medium gives information to the community. It provides facilities for persons who can speak with knowledge and authority and who hold opposing views to put those views, it being left to the viewers to gain such benefit as they can from what they hear and see. It is usually understood that the television entrepreneur puts forward no views of his own as to the validity of what is said. This technique is a useful process in the development of informed national attitudes to national questions”.

79 In Telnikoff v Matusevitch [1992] 2 AC 343, 354-5 Lord Keith of Kinkel, who delivered the principal speech, held that a defendant who pleads fair comment does not have to prove that the comment represented his own honest opinion, but the plaintiff has the onus of proving malice. The defendant in Telnikoff v Matusevitch was the writer of a letter published in “The Daily Telegraph”, but the principle applies, with added force, to a media defendant.

80 The same conclusion was reached in Pervan v The North Queensland Newspaper Co Ltd (1993) 178 CLR 309, where the defendant was sued for publishing a defamatory advertisement for a public meeting, although the actual decision was based on a section of the Queensland Criminal Code dealing with the defence of fair comment.

81 Those cases dealt with fair comment, but are persuasive in cases of derivative qualified privilege. The situations are analogous [compare para 60] as is clear from the statement of Farwell LJ in Dawson v Dover & Country Chronicle Ltd (1913) 108 LT 481, 485, quoted in the joint judgment in Pervan at 329:

“The plea of fair comment is not the newspaper’s plea: it is the adoption by the newspaper of the speaker’s protection of fair comment”.

82 In Roberts v Bass (2002) 77 ALJR 292, in which judgment was delivered after this Court had reserved its decision in the present case, the High Court considered the reply of malice to a defence of qualified privilege for publications disparaging a political candidate for the benefit of a rival. The defence was raised by the first appellant who was responsible for the content of the publications, and by the second appellant who had merely handed out how to vote material prepared by the first appellant. The principles held to govern the issue of malice as it affected the second appellant are highly relevant in this case. The parties submitted a memorandum drawing the Court’s attention to the relevant paragraphs in the judgments of the High Court.

83 Gleeson CJ held (297) that the absence of a positive belief in the truth of the material published did not establish malice. Gaudron, McHugh and Gummow JJ, in their joint judgment, said (308):

“... neither lack of honest belief nor knowledge of falsity ipso facto destroys a defence of qualified privilege. But knowledge of falsity is almost conclusive evidence of improper motive except where the defendant is under a legal duty to publish the defamation”. (emphasis supplied)

84 They added (309) that in this context lack of belief in the truth of what was published was not to be treated as if it were equivalent to knowledge of falsity. Referring to the position of the second appellant they said (312):

“... persons handing out how-to-vote cards ... may not themselves have thought about whether much or any of the content of the how-to-vote card is true. Such persons will not lose the protection of the occasion because they had no positive belief in the truth of any defamatory matter in the how-to-vote cards ... In many cases they will be handing out material they have not even read”.

85 TCN did not therefore lose the benefit of its defence of qualified privilege because it had no belief in the truth of what it published about the plaintiff, and particular (a) [para 76] fails as a matter of law.

86 Particular (b) asserted that TCN was reckless as to the truth of what it published about the plaintiff. It is not clear whether this particular was intended to assert that TCN was reckless because it published the imputations without caring whether they were true or false, or because it was guilty of a high degree of negligence.

87 Recklessness of the former kind was considered in relation to the tort of deceit in Derry v Peek (1889) 14 App Cas 337. The House of Lords there held that for that purpose recklessness was the equivalent of knowledge of falsity, and did not depend on negligence, but upon proof of the lack of an honest belief in the truth of the representation (per Lord Herschell at 374). Since the lack of an honest belief is not malice which defeats a defence of qualified privilege, recklessness in the Derry v Peek sense cannot be malice for this purpose either.

88 Recklessnesss in the sense of a high degree of negligence, such as that which attracts criminal responsibility for involuntary manslaughter, presupposes a duty to exercise care. However malice which will destroy a defence of qualified privilege is not concerned with the care taken by the publisher, but with his motives and honesty. A person publishing defamatory material on an occasion of qualified privilege owes no duty of care to the person defamed. The principles were authoritatively stated in the joint judgment in Roberts v Bass (312):

“Carelessness of expression or carelessness in making a defamatory statement never provides a ground for inferring malice. The law of qualified privilege requires the defendant to use the occasion honestly in the sense of using it for a proper purpose; but it imposes no requirement that the defendant use the occasion carefully ... mere failure to make inquiries ... is not evidence of malice”. (citations omitted)

89 Particular (b) [par 76] therefore fails as a matter of law.

90 The remaining particulars of malice allege (c) that TCN knew that the Union was motivated by malice towards the plaintiff, and (d) that it believed that what it published about the plaintiff was false. They may conveniently be considered together.

91 TCN and Mr McDonald jointly published the Union’s reply and in putting the programme to air TCN acted in effect as his agent pursuant to their common purpose: compare par 22 and Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574, 580-1, 591, 600, 602, where the station put to air in the Capital Territory programmes produced by Channel 9 in Sydney and transmitted by microwave link.

92 In Egger v Viscount Chelmsford [1965] 1 QB 248 CA the action for libel was based on a letter written by the assistant secretary of a voluntary association on the instructions of its committee. The jury found that five of the committee members had been actuated by malice, but exonerated the assistant secretary and the others.

93 Lord Denning, who delivered the principal judgment, held (261) that the assistant secretary was not answerable for the malice of the committee members who were his principals. His Lordship added (263) “innocent parties to a joint publication ought not to be affected by the malice of the malicious one” and (265) “A defendant is only affected by express malice if he himself was actuated by it”. See also per Davies LJ (272).

94 It had not been suggested in that case that the assistant secretary knew that a majority of the committee were actuated by malice, or that he believed the defamatory statements were false.

95 It is not obvious that a person who republishes with knowledge of malice or falsity can properly be described as “innocent”.

96 Even if the judgments of the Court of Appeal are to be read as meaning that a person involved in a joint publication is “innocent” unless personally actuated by malice the statements to that effect would only be dicta as the facts did not raise that question and it was not necessary to decide it.

97 The better view is that the judgments of the Court of Appeal should be read in the context of the facts before the Court (Quinn v Leathem [1901] AC 495, 506). The Judges therefore should not be understood as intending to express any opinion on whether a republisher who knows that the statement is false or that its author is actuated by malice is, for present purposes, innocent.

98 The same considerations apply to the dictum of Jordan CJ in Dougherty v Chandler (1946) 46 SR (NSW) 370, 376:

“... as a matter of principle, where, to defeat a plea of several defendants sued jointly, it is necessary for the plaintiff to prove express malice, he must fail as against any defendant to whom he is unable to sheet home express malice”.

99 The latest edition, the 9th, of Gatley on Libel and Slander, published in 1998, tends to support the submissions of Mr Molomby on the relevance of these particulars. The question is dealt with in a number of places. The following appears at 194:

“Where A publishes material by B on an occasion of qualified privilege, if B was actuated by malice and A was unaware of this state of mind , A will have a defence unless the relationship between A and B was such as to make A ... vicariously liable for B’s actions”. (emphasis supplied)

100 The converse does not necessarily follow but the passage seems to imply that knowledge of B’s state of mind would defeat A’s privilege.

101 At 427 the authors cite Horrocks v Lowe [1975] AC 135 as authority for this proposition:

“There are exceptional cases where a person may be under a duty to pass on defamatory reports made by another which he does not believe to be true; he is not then malicious”.

102 The relevant passage in Horrocks v Lowe is at 149-50 where Lord Diplock said:

“If it be proved that he did not believe that what he published was true this is generally conclusive evidence of express malice, for no sense of duty or desire to protect his own legitimate interests can justify a man in telling deliberate and injurious falsehoods about another, save in the exceptional case where a person may be under a duty to pass on, without endorsing, defamatory reports made by some other person”. (emphasis supplied)

103 The other passage in Gatley at 442-3 deals with the effect of malice in one joint publisher of comment:

“It is submitted that the better view is that in such a case B may take advantage of the defence of fair comment (unless he is aware of A’s malice or is vicariously liable for A)”. (emphasis supplied)

104 Gatley cites no authority for these statements other than the passage from the speech of Lord Diplock.

105 The question was considered in some depth in Australian Broadcasting Corporation v Comalco Ltd (1986) 12 FCR 510. Blackburn CJ, in the Supreme Court of the Australian Capital Territory, found that a programme on Four Corners, criticizing the conduct of Comalco at Weipa, was protected by qualified privilege but the ABC had been actuated by malice.

106 The ABC appealed to the Federal Court. Smithers J held (542) that the programme was protected by qualified privilege, but (552) upheld the finding of malice. Neaves J held (581) that the programme was not protected by qualified privilege but (582) if it had been the privilege would have been lost because of malice. Pincus J held that the occasion was not privileged (595), but if it was the privilege would have been lost because of malice (591, 597). The majority therefore held that the occasion was not one of qualified privilege, and this is consistent with the currently accepted common law position in Australia.

107 The decision on the malice question is a strong one because all four Judges found that the ABC had been actuated by malice. The relevant facts were stated by Smithers J (543):

“It appears that the appellant, having learnt of the programme being shown in England, decided to buy it from Granada who had produced it. The programme became its property. It was by its initiative that it was shown in Australia. The appellant decided to provide for the film an editorial introduction by a member of its staff. It edited the film. It decided also to provide a debate at which the manager of the respondent at Weipa might add any comments he wished in view of the direct and severe criticism made in the film of the conduct and attitude of the respondent in relation to the land and the Aboriginal people. These comments inevitably took the form of a defence of the company. It was clearly placed ‘in the dock’ by the allegations made against it. The appellant was of course well aware of the defamatory nature of some of the statements made by participants in the film. It is a reasonable inference that it was on this account that it afforded the opportunity to the manager to reply”.

108 Smithers J dealt with the issue of malice at some length. He said (544):

“If the medium presenting the programme knows that certain statements injurious to an individual are untrue or are slanted to create an injurious impression which it is known would be erroneous the occasion, if otherwise privileged, is abused ... The community cannot be assisted in the formation of its opinions on public questions if the material published to it is untrue. To publish such material knowing it to be untrue would be to abuse the occasion . To slant the material to promote a conclusion known to be unsupported by fact would be to abuse the occasion”. (emphasis supplied)

109 At 547-8 he said:

“The pictures and statements in the programme were submitted by the Four Corners public affairs division of the appellant as a serious contribution by it to public consideration of the issues dealt with. And it impliedly said to the public ‘you may take seriously everything that is contained in the programme’. There being contradictions in the programme it is a question whether Four Corners were saying ‘don’t form any view about the truth of anything that is contradicted’ or ‘where there are contradictions you make up your own mind which statement you accept’. Inevitably I think it is the latter. In such an exercise it ... almost inevitably would constitute conclusive evidence of malice to publish statements known by the publisher to be untrue ... even although they are contradicted on the same programme by a person having a contrary interest.
However, I would think it not necessarily conclusive evidence of malice to publish statements which the publisher does not himself believe to be true, but does believe to be made bona fide by the person making them . In certain circumstances it would be legitimate for the publisher, acting bona fide, to surrender his views [to] those of the speaker, for the purpose of public consideration of the subject. ... The legitimacy of publication might depend on the publisher’s assessment of the speaker’s motives and degree of familiarity with the subject. ... When the appellant published the defamatory statements it did not assert their truth. It put them forward as the bona fide views of the persons who spoke the words ... Although it did not put them forward as being its views it did put them forward as statements of fact to be taken seriously by viewers and as statements which, although contradicted by statements of other persons, they might care to believe”. (emphasis supplied)

110 At 550 Smithers J concluded on the present question:

“The privilege arising out of the occasion might well ... extend to publication of matter which the appellant believed to be the opinion of the makers of the statement and bona fide made by them on the issues of public interest . According to the circumstances it might so extend although the appellant itself had no opinion as to the truth or falsity of what was said. It might also extend to statements which the appellant did not believe to be true ... It is not [necessary] for the appellant to be the judge of the truth of what other persons bona fide believed to be true . But if the appellant used the occasion to publish what it knows to be untrue there is an abuse of that occasion”. (emphasis supplied)

111 Neaves J said (582) that he would have found the appellant guilty of malice because it published statements it knew to be untrue. Pincus J said (597):

“... the appellant dealt recklessly with the respondent’s reputation by failing to exclude material known to be ... false”.

112 Although this decision is referred to in the latest edition of Gatley, the authors do not cite it on the issue of malice (438). However the Ninth Edition of Fleming does cite the decision on the present question (639).

113 The decision was cited with approval in Theophanos v Herald & Weekly Times Ltd (1994) 182 CLR 104, 133, 176 and in Stephens v Western Australian Newspapers Ltd (1994) 182 CLR 211, 251, but not on the present point. It does not appear to have been disapproved on any question by any other intermediate appellate court in this country, and does not appear to have been considered in England, Canada or New Zealand.

114 This Court would ordinarily follow the decision of another intermediate appellate court in this country unless persuaded that it was clearly wrong. In my judgment however the judgment of the Full Federal Court on this question, particularly the judgment of Smithers J, was correct. I see no reason why a media organisation should retain a derivative qualified privilege when it knows that its joint publisher has lost its primary privilege because it is actuated by malice.

115 Sperling J said in his interlocutory judgment that none of the authorities he was referred to were directed to the present situation and he understood that there was no authority directly in point. He was not referred to ABC v Comalco. He decided to apply, by analogy, the cases which establish that a person under a duty to pass on a defamatory statement may do so without loss of the privilege even if he knows or believes that the statement is untrue.

116 He also relied on cases thought to establish a further exception where the person passing on the defamatory statement acts reasonably in doing so.

117 The exception for cases where there is a duty to pass on the defamatory statement [see paras 83, 101, 102] is well established but the same cannot be said about the further exception. Sperling J relied on a dictum of Hunt J in Makin v John Fairfax & Sons Ltd (1990) A Def R at 40,526 and on para 16.17 of the 9th Edition of Gatley.

118 The only example given in Gatley to support the further exception is a fair report of criminal proceedings published after an acquittal which could still refer to evidence which tended to establish guilt. The example is hardly persuasive, or even relevant, in the present context. The dictum of Bramwell LJ in Clark v Molyneux (1877) 3 QBD 237, 244 that there may be cases where it is “proper” to communicate a defamatory statement to a person who “ought” to be informed of it, does not, in my judgment, support an exception for cases where there is no duty.

119 The principle contended for by TCN is that it can be reasonable for the media to publish at large defamatory material known or believed by it to be false because it is part of the target’s reply to a public attack. I cannot see any reason for the Court to hold that it would be reasonable for the media to do this or that any extension of the established exception which might properly be recognised should cover such a case. The established exception where there is a duty has generally, if not invariably, been applied to protect the private communication of defamatory matter. Compare Mowlds v Fergusson (1939) 40 SR (NSW) 311; and Oldfield v Keogh (1941) 41 SR (NSW) 206, which concerned confidential reports by police officers to their superiors, and the example given in para 16.17 of Gatley of an auditor who is bound to pass on evidence of fraud by a trusted employee believed to be innocent.

120 In Blackshaw v Lord [1984] QB 1 CA, 27 Stephenson LJ referred to the category of exceptional cases and said:

“There may be extreme cases where the urgency of communicating a warning is so great, or the source of the information so reliable, that publication of suspicion or speculation is justified; for example, where there is danger to the public from a suspected terrorist or the distribution of contaminated food or drugs”.

121 This dictum was noticed by Smithers J in ABC v Comalco at 546 where he said:

“As indicated by Lord Diplock, there may be exceptional cases, which justify publishing even deliberate and injurious falsehoods about another. Stephenson LJ indicated in Blackshaw v Lord ... exceptional cases where publication of that which is merely suspected may be made on a privileged occasion ... These would be examples of genuine exceptions of the kind referred to by Lord Diplock”.

122 With respect the examples given by Stephenson LJ are not exceptions to the general rule, because the statements of suspicion and speculation communicated to the public were not known to be false. I can see no justification for the publication of statements about terrorists, or contaminated food or drugs, which are known to be false. These dicta do not support a further exception for cases where the publisher has acted reasonably.

123 In any event, in my judgment, this Court should apply the clear dictum in the joint judgment in Roberts v Bass [par 39] that limits the exception to cases where the defendant is under “a legal duty”.

124 Since writing the above I have had the benefit of reading the judgment of the Chief Justice who has reached a different conclusion on the malice issue. After careful consideration, and with respect, I adhere to my original opinion.

125 The plaintiff sought to answer TCN’s plea of common law qualified privilege by a reply of malice. The rules of pleading permit a simple reply of malice, and as a pleading it was not liable to be struck out as frivolous, vexatious, or demurrable.

126 However, Rules of Court required the plaintiff to give particulars to support the reply. The relevant Rules are SCR Pt 16 rr 1(1), 3(1) and Pt 67 r 19(1)(d). Rule 1(1) requires a party pleading to give “the necessary particulars” of any matter pleaded by him, and Rule 3(1) requires a party pleading any condition of mind to give “particulars of the facts on which he relies”. Sub r (2) provides that condition of mind includes malice. Pt 67 r 19(1)(d) provides that the particulars of malice required by Pt 16 r 1 “shall include particulars of the facts, matters and circumstances on which the plaintiff relies to establish that allegation”.

127 Particulars are intended, among other things, to inform the opposite party of the nature of the case he has to meet and to limit the issues to be tried.

128 The rules require particulars of the facts, matters and circumstances relied upon. Mere unsubstantiated allegations are not sufficient because “they merely assert the ultimate facts to be inferred from unstated facts and matters”: Waterhouse v Station 2GB Pty Ltd (1985) 1 NSWLR 58, 67 per Hunt J.

129 In his Further Amended Reply of 26 October 2001 the plaintiff provided further particulars of paragraphs (a), (b), and (d) which referred to documents discovered by TCN, some of its answers to interrogatories and other facts and matters. TCN did not contend before Sperling J or this Court that these further particulars did not comply with Pt 67 r 19 (1)(d).

130 Particulars (c) and (d) particularise facts on which the plaintiff relied. If proof of those particulars was incapable, as a matter of law, of establishing malice, they should have been struck out. However in my judgment they are capable of establishing a prima facie case of malice, and as such were proper particulars of the ultimate facts on which the plaintiff relied.

131 It is not necessary to decide, and I do not decide, that proof of the matters particularised in (c) and (d) will necessarily, and in all cases, establish, as a matter of law, that a media organisation publishing the reply of a target is guilty of malice. That question is not before us and may never arise in that simple form.

132 Proof of the matters particularised in (c) and (d) may fall for consideration where the defendant has not called evidence and the tribunal of fact has to consider what inferences may be drawn. The question may also arise where the defendant has called evidence, and exposed the reasons which moved it to publish the programme and the target’s reply as it did. In such a situation the tribunal of fact will have to consider whether the defendant’s state of mind in publishing material which it knew to be false, from a source known to be actuated by malice, justifies a finding that it was actuated by malice.

133 It is at this stage of the enquiry, after a defendant has gone into evidence on the issue, that the considerations referred to by the Chief Justice in paras 26 and 27 of his reasons for judgment become relevant.

134 I cannot, with respect, agree with the Chief Justice that the plaintiff’s particulars of malice had to specify “the purpose or motive” with which TCN published the matter complained of [par 10]. It is not, in my view, necessary that the facts particularised should be “necessarily conclusive” of malice. It is sufficient that they disclose “a basis for inferring an improper motive for publication” [pars 25, 27].

135 The Chief Justice states that: “The particulars must assert ... what the unauthorised purpose was” [par 30], and holds they are not sufficient because they do not state “an improper purpose or motive” [par 45, see also pars 30, 44]. With respect SCR Pt 16 r 3(1) and Pt 67 r 19 (1)(d) only require a plaintiff to state the facts, matters and circumstances on which he relies to prove malice. A plaintiff is not required to particularise the unauthorised purpose or motive which actuated the defendant.

136 In the ordinary case a plaintiff will not know what this was and can only reasonably be required to particularise the facts on which he relies to establish a prima facie case.

137 The Chief Justice accepts that the matters particularised in (c) and (d) “may constitute evidence from which an inference of an improper motive may be drawn” [par 44, see also pars 25, 27, 42, 43]. In my judgment nothing further is required of a plaintiff.

138 In my opinion therefore the appeal must be allowed. Although I would reverse the trial Judge on limited aspects of the malice issue this Court has had the benefit of further argument and the opportunity for extended reflection and research which were denied to the trial Judge who had to rule on the question in the middle of a jury trial.

139 It was therefore necessary to consider TCN’s cross-appeal which is only relevant to imputation (e) on which the plaintiff recovered a verdict of $10,000 damages. The cross-appeal is based on an alleged misdirection of the jury during the separate trial when the jury found that two imputations had been conveyed and were defamatory.

140 During his address to the jury Mr McClintock SC, appearing for TCN, invited the jury to find that the imputations were not conveyed because the viewer would not believe what Mr McDonald said about Mr Bass. The substance of his submissions on this point are conveyed by a passage quoted by Sperling J in his reserved reasons on this issue delivered on 21 November 2001. Mr McClintock told the jury (2):

“It is relevant who was believed in this programme because differing points of view are put ... if the viewer believed Mr Bass and Mr Munro, these imputations will not be conveyed”.

141 The point of his Honour’s summing-up to the jury on this issue is sufficiently encapsulated in the following passages (5-6):

“... if the whole tenor of the publication is to destroy the suggestion of wrongdoing, the publication does not convey the disparaging imputation ... if a part of the programme would be disparaging in isolation, the programme carries that imputation, unless it is apparent that what the programme as a whole is saying on that point is that the disparaging statement is wrong”.

142 In the absence of the jury Mr McClintock sought a redirection to the opposite effect which his Honour refused. He then continued his summing-up and instructed the jury that in some respects Mr McClintock’s address to them did not accord with legal principle and to that extent must be disregarded. He said (7-8):

“It is not enough for the programme to have presented two sides of the story and leave it to the viewer to decide which is correct, let alone expect that the viewer will decide which is correct. Nor is it a question of which of the protagonists in the programme the ordinary reasonable viewer would have believed”.

143 In my judgment the summing-up on this question was impeccable and I agree completely with the Judge’s reserved reasons for directing the jury as he did, and am content to adopt them as my own. The jury were correctly directed that an imputation conveyed by one part of the programme will be conveyed by the programme as a whole unless it was made clear that the imputation was incorrect. The question for the jury was whether the imputation was conveyed. This depended relevantly on what was spoken during the programme. The belief of the listener is not part of the programme, cannot be conveyed by it, and therefore it is irrelevant. The cross-appeal should be dismissed.

144 The result of the appeal is that the plaintiff’s case of malice, particularised in paras (c) and (d) [par 76], was wrongly withdrawn from the jury and to this extent the Court must order a new trial.

145 Under SCR Pt 51 r 23 (2) the Court can order a new trial on some question without interfering with the decision on any other question and under sub r (3) where some ground for a new trial affects part only of the matter in controversy the Court may order a new trial as to that part only.

146 There is no reason to reopen the jury’s findings that imputation (e) was conveyed, was defamatory, and was false. There is also no reason for reopening the Judge’s finding that it was published on an occasion of qualified privilege. Limited issues on malice must be sent back for trial, and it will also be necessary to reopen the assessment of damages because if the jury were to find that TCN had been actuated by malice they would be entitled, for that reason, to award additional damages.

147 The plaintiff has succeeded in part on the issue of malice and failed on the other issues except the cross-appeal. Since the hearing did not last for more than a day the additional issues have not significantly increased the costs of the appeal, other than the costs of the written submissions directed to those issues. Accordingly I would order the respondent to pay 75% of the appellant’s costs of the appeal and cross-appeal.

148 No occasion appears to arise for the Court to exercise its powers under Part 51 r 23 (5), but liberty should be reserved to either party to apply for orders under that sub rule.

149 The following orders should be made:

(1) Appeal allowed;

(2) Judgment for the defendant in the action with costs set aside;

(3) Order that there be a new trial of the action limited to the issues of malice raised by paras 2 (c) and (d) of the plaintiff’s further amended reply of 23 October 2001 and the issue of damages in respect of the imputation pleaded in para 5 (e) of the plaintiff’s second further amended statement of claim of 18 April 2000;

(4) The respondent to pay three quarters of the appellant’s costs of the appeal and cross-appeal;

(5) The costs of the first trial are to abide the decision of the Judge presiding at the second.

150 WOOD CJ at CL: I have read the judgments in draft of Spigelman CJ and Handley JA. The facts, and the issues which arose for determination at the trial, and on the appeal, are set out in the judgment of Handley JA, and I respectfully adopt his Honour’s statement of them.

151 I similarly accept, subject to the question of malice, his Honour’s conclusions concerning the availability, to TCN, of a defence of qualified privilege, in relation to the publication of the Union’s response. That privilege was itself derivative of the privilege attaching to the Union, or perhaps more appropriately, to Mr McDonald: Loveday v Sun Newspapers Limited (1938) 59 CLR 503 and Radio 2UE Sydney Pty Limited v Parker (1992) 29 NSWLR 448.

152 I also adopt, with respect, the additional observations of Spigelman CJ concerning the reasons why, subject to the question of malice, TCN should be regarded as having had the benefit of a derivative privilege, in the circumstances of this case.

153 The outstanding issue concerns the question whether the reply of malice, which was taken away by the trial Judge, was available to the Appellant, in the light of the manner in which that allegation was pleaded.

154 The particulars of the facts which were relied upon by the Appellant, as showing that the condition of TCN’s mind, when publishing the imputations, was one of malice (Supreme Court Rules Part 16, rule 3, Part 67 rule 19 (1)(d)) were in substance that:

(a) TCN had no belief in the truth of what was published;

(b) it was reckless as to the truth of what it published;

(c) it knew that the Building Workers Industrial Union spokesman was motivated by malice toward the plaintiff; and

(d) it believed that what it published about the plaintiff was false.

155 As Handley JA has noted (para 77), malice on the part of Mr McDonald is not automatically transferred to TCN. To establish malice, in a way depriving it of the qualified privilege, actual malice on its part would need to be demonstrated: see Egger v Viscount Chelmsford [1965] 1 QB 248 per Lord Denning MR at 261, 263 and 265 and per Davies LJ at 272.

156 The onus of proving malice, and the obligation of particularising the circumstances which evidence it, rests upon a plaintiff.

157 In Roberts v Bass (2002) 77 ALJR 292, which was decided after judgment in this appeal was reserved, Gaudron, McHugh and Gummow JJ noted (para 83) that “neither lack of honest belief nor knowledge of falsity ipso facto destroys a defence of qualified privilege”. Their Honours continued:

“ But knowledge of falsity is ‘ almost conclusive evidence’ of improper motive, except where the defendant is under a legal duty to publish the defamation.”

158 Gleeson CJ also held that the “mere absence of positive belief in the truth of what is published, if that be all there is to it, does not establish malice.”

159 It would follow that particular (a) would not, by itself, as a matter of law, establish malice. It could however continue to be relevant as one of a series of circumstances which, when considered together, would support an inference of malice.

160 I would reach the same conclusion in relation to particular (b), whether the recklessness particularised was of the genus commonly referred to as culpable negligence, or involved publication careless of whether the imputation was true or not.

161 The joint judgment in Roberts v Bass similarly deals with this aspect of the particulars, it being stated (para 103):

“ Carelessness of expression or carelessness in making a defamatory statement never provides a ground for inferring malice. The law of qualified privilege requires the defendant to use the occasion honestly in the sense of using it for a proper purpose ; but it imposes no requirement that the defendant use the occasion carefully.”

162 Their Honours added (para 104):

“ … in considering whether the plaintiff has proved malice, it is necessary that the plaintiff not only prove that an improper motive existed, but that it was the dominant reason for the publication.”

163 The determination of the present case appears to me to come down to whether or not particulars (c) and (d) in conjunction with either particular (a) or (b) (which appear to involve alternative rather than cumulative assertions of fact), are sufficient to support a case of malice. One can entertain a concern that the appeal should turn upon a narrow point of the sufficiency of the pleadings, however, the Respondent is entitled to take its stand in the light of the case which it was required to meet.

164 The position would have been clear, and would have been resolved in favour of the Appellant, had the particulars gone on to expressly allege, for example, that TCN had published the reply in circumstances where it knew that the material which it put to air was not balanced, or where it did so in order to unfairly harm the Appellant, or where it acted for some other improper motive personal to itself.

165 The passage cited by Handley JA from the 9th edition of Gatley on Libel and Slander (p 194) tends to suggest that if TCN published the material in circumstances where it knew that Mr McDonald, or the Union, was actuated by malice, and that their response was untrue, then its privilege would be lost. If that proposition is correct, then particulars (c) and (d) would suffice to show malice.

166 There would appear to be some support for this proposition in Australian Broadcasting Corporation v Comalco (1986) 12 FCR 510; and also in Horrocks v Lowe [1975] AC 135, unless the case was one of the exceptional kind, mentioned by Lord Diplock (at 149 to 150), where “a person may be under a duty to pass on, without endorsing, defamatory reports made by some other person”. His Lordship earlier noted, as would appear to be fair and sensible, that otherwise:

“If it be proved that he did not believe that what he published was true this is generally conclusive evidence of express malice, for no sense of duty or desire to protect his own legitimate interests can justify a man in telling deliberate and injurious falsehoods about another.”

167 The existence of another possible exception, where a defamatory statement, which is known or believed to be false, may be passed on without the loss of privilege, provided the defendant acts reasonably in doing so, also arose for consideration. In this respect, TCN relied upon a dictum of Hunt J (as he then was) in Makin v John Fairfax and Sons Ltd (1990) A Def R 40, 526 to that effect.

168 No other authority was identified in support of this proposition, and I am not persuaded that it should be regarded as other than an incident of the “duty” exception. Its application should, in my view, be confined to cases of the kind noted by Stephenson LJ in Blackshaw v Lord [1984] QB 1 at 27, where there is a pressing justification to pass on the information, for example to initiate the investigation of a possible crime, or to head off some suspected event which could threaten the well being or safety of the community. In those cases a duty may well arise to publish where the state of mind falls short of actual knowledge of the falsity of the relevant statement or imputation. Depending on the circumstances, a belief or concern that the statement may be false, might not necessarily deny, to the publisher, the defence, since the potential consequences of silence, if the statement was true, may outweigh the risk of harm to the target, if it turned out that the belief was erroneous.

169 Otherwise, however, it is difficult to conceive of any situation where there is a legal or moral or even a social duty to deliberately publish a statement that is known to be false.

170 I am not persuaded that the present case is one that would attract the duty exception, whether it be framed as a legal, moral, or social duty. I am then driven back to the general observations in the authorities cited, which were framed in terms that the publication of a defamatory statement known to be false, would “ordinarily” or would “almost invariably” show an improper motive, or would provide “almost conclusive evidence” thereof.

171 Particulars (c) and (d), when read together as part of a circumstantial case, would, in my view, be capable of establishing an improper motive, depriving TCN of the qualified privilege that would otherwise have attached.

172 Whether these facts can be established is another matter, but as this appeal is to be resolved on a narrow point of pleading, I am of the view that the reply should have been available to the Appellant. I would accordingly allow this aspect of the appeal. I agree with the orders proposed by Handley JA.

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Last Modified: 05/21/2003