Bellino v Australian Broadcasting Corporation

[1996] HCA 47

HIGH COURT OF AUSTRALIA

BRENNAN CJ, DAWSON, GAUDRON, McHUGH AND GUMMOW JJ

VINCENZO BELLINO v AUSTRALIAN BROADCASTING CORPORATION

28 March 1996

Defamation (1996) 185 CLR 183

Defamation—Qualified protection—Functions of judge and jury—Criminal Code (Q) s 377(8). Defamation—Qualified protection—"subject of public interest"—Common law meaning—Criminal Code (Q) s 377(8). Defamation—Qualified protection—"in the course of or for the purposes of" discussion—Initiating discussion—Relevance—Criminal Code (Q) s 377(8). Defamation—Qualified Protection—Discussion of a subject of public interest—Whether for "public benefit"—Criminal Code (Q) s 377(8). Defamation—Qualified Protection—Good faith—Relevance—Manner and extent of publication—Naming plaintiff—Criminal Code (Q) s 377(8). Criminal Code (Q) s 377(8). Defamation Act 1889 (Q) s 17(8). Defamation Act 1958 (NSW) s 17.

Headnote

Hearing

BRISBANE, 19-20 June 1995
#DATE 28:3:1996, CANBERRA



Counsel for the Appellant C.E.K. Hampson QC with
P.D.T. Applegarth



Solicitors for the Appellant Myles Thompson


Counsel for the Respondent R.A. Mulholland QC with
D.K. Boddice



Solicitors for the Respondent Biggs and Biggs Francis
and McGregor

Orders

1. Appeal allowed.
2. Set aside the order of the Queensland Court of Appeal dismissing the appeal.
3. In lieu of the said order of the Queensland Court of Appeal, order:
(a) that the appeal to that Court be allowed;
(b) that the matter be remitted to the Supreme Court of Queensland for a new trial.
4. The respondent pay the costs of the appellant in the Queensland Court of Appeal and in this Court.

Decisions

BRENNAN CJ. The respondent ("the ABC") telecast in its national "Four Corners" series a programme entitled "The Moonlight State" on 11 and 17 May 1987. The programme purported to expose corruption in the administration of the Queensland Police Force whereby protection was given, with the concurrence or connivance of State political figures, to persons controlling illegal drug trafficking, illegal gambling and prostitution. After referring to the position in Brisbane, in which Geraldo and Antonio Bellino, the brothers of the appellant Vincenzo Bellino, were named as being involved in these illegal activities, the programme contained passages relating to Vincenzo Bellino's activities in North Queensland. The more significant passages of the transcript taken of the programme are set out in the judgment of Dawson, McHugh and Gummow JJ and I need not repeat them.


2. The appellant, claiming that he was unlawfully defamed in the programme, sued the ABC for damages for defamation in the Supreme Court of Queensland. The ABC pleaded the excuse provided for by s 377(8) of The Criminal Code (Q) which reads:
"It is a lawful excuse for the publication of defamatory matter -

...

(8) If the publication is made in good faith in the course of, or
for the purposes of, the discussion of some subject of public interest, the public discussion of which is for the public benefit, and if, so far as the defamatory matter consists of comment, the comment is fair.
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."
Particulars of the subjects of public interest were furnished in the following terms:
"(a) organised crime and corruption in Queensland and/or allegations
made in relation thereto;
(b) the existence of, and/or protection of, illegal activities,
and/or allegations made in relation thereto;
(c) trafficking in illegal drugs and/or allegations made in relation
thereto."


3. The appellant pleaded an absence of good faith in three respects: (i) that the ABC was actuated by improper motive; (ii) that the material broadcast relating to the appellant was not relevant to the "matters by which the (ABC) seeks to excuse the broadcast" - that is, the discussion of the subjects specified in the particulars, and (iii) that the manner and extent of the publication of that material "exceeded what was reasonably sufficient for the programme". The trial judge (Mackenzie J) withdrew from the jury both the issue of relevance and the issue of manner and extent. His Honour put to the jury and the jury answered the following questions:
"1. Q: Were the words and pictures published by the Defendant on
'the Moonlight State' on the 11th and 17th days of May, 1987 defamatory of the Plaintiff?
A: Yes.

2. Q: If 'yes' to question 1 did the words and pictures published by
the Defendant on 'the Moonlight State' on the 11th and 18th days of May, 1987 mean:
...

(e) the Plaintiff was a person who either individually or as a
member of a syndicate obtained protection from the police or other bodies?
A: Yes.

(f) the Plaintiff was a person who either individually or as a
member of a syndicate was involved in the sale, manufacture, possession, cultivation and/or importation of dangerous drugs?
A: Yes.

(g) the Plaintiff was a person who either individually or as a
member of a syndicate was immune from prosecution as a result of either political or police favour obtained either by bribery or corrupt practices?
A: Yes.

...

3. Q: Was the public discussion of the subject or subjects of public
interest for the public benefit?
A: Yes.

4. Q: If 'yes' to questions 1 and 2, was the Defendant actuated by
an improper motive to the Plaintiff in publishing the defamatory matter?
A: No.

5. Q: (a) What compensatory damages?

A: $750,000.

..."

On those answers the ABC moved for judgment on the footing that it was lawful to publish the matter containing the imputations which the jury had found. The trial judge entered judgment for the ABC. The appellant's appeal to the Court of Appeal was dismissed by majority (Davies JA and Demack J, Macrossan CJ dissenting).


4. Davies JA upheld the trial judge's withdrawal of the issue of relevance from the jury, saying:
"As to relevance, the structure of the programme was to present a
chronological account of allegations of corruption in the Queensland Police Force, to show the hierarchical structure of the corruption and to show, by the example of the Bellinos, how the structure extended from the Gold Coast through Brisbane to North Queensland. The allegation against the appellant was that he took a leading part in the drug trade and aspects of police corruption. The question is not whether it was necessary to name him but whether it was relevant to do so. As it was his family which made the connection between North Queensland and the south it was relevant. His Honour was entitled to withdraw that question from the jury."
Demack J, pointing to the fact that the appellant had been named in Parliament as a person involved in the matters mentioned in the particulars of subjects of public interest, held that the naming of the appellant was relevant to those subjects.


5. Davies JA dismissed the objection that the issue of manner and extent had been withdrawn from the jury, saying:
"There was no complaint here about the way in which the appellant
was named; it was the fact that he was which formed the basis of the complaint. Nor was any complaint made about the breadth of the publication. His Honour was therefore entitled to withdraw manner and extent from consideration by the jury."


6. Whether the appellant's argument is put in terms of relevance or manner and extent, the thrust of his case was that the ABC could not claim the protection of s 377(8) for the publication of the part of the programme in which he was named and in which the ABC made the imputations found by the jury. The appellant submits that his activities were not a subject of public interest, the public discussion of which was for the public benefit. Macrossan CJ accepted the appellant's argument in these terms:
"Fundamental questions are whether the three topics particularised
by the respondent were, for present purposes, the relevant subjects and, if they were, was the matter published, which included the defamation of the plaintiff, relevant to them. ... Does the word 'relevant' in the last paragraph of s 377 mean 'has some connection in terms of topic dealt with' or does it go further and require that the defamatory aspect lies wholly within the bounds of a topic more exactly stated so that all of the material discussion must be the subject of public interest which it is for the public benefit to discuss. ... As will appear the second alternative is favoured.
...

Prior to the telecast referred to in the proceedings, there was no
relevant public interest established in the affairs of the appellant....
There was no preceding discussion of the appellant's affairs going
on and for the defence to be available there would have been a need for this ... the result is that it should have been held below that no relevant privileged occasion arose and hence the defence of qualified privilege failed."


7. In the appeal to this Court, the appellant challenges the summing up of the trial judge, his Honour's determination of all issues arising under s 377(8) except those issues put to the jury in questions 3 and 4, and the interpretation placed upon s 377(8) by the trial judge and by the judgments in the Court of Appeal.


8. The disparity of opinion in the Court of Appeal reveals the issues which now fall for determination: first, must a "subject of public interest" falling within s 377(8) be constituted by the conduct or affairs of the person defamed or, perhaps, of some other person or may it be a general topic or state of affairs the discussion of which does not necessarily import a reference to the conduct or affairs of any particular person? Secondly, must there be some public interest in the subject prior to the publication of the defamatory matter? And, thirdly, was the trial judge entitled to withdraw from the jury the issues of relevance and manner and extent?


"A subject of public interest"
9. Sir Samuel Griffith, the draftsman of the Code and the antecedent Defamation Law of 1889 (Q), intended s 377 to express the common law of qualified privilege. However, as Griffith CJ observed in Dun v Macintosh; Macintosh v Dun (1), the Code's definition of "good faith" may be "a little harder on the publisher of a libel than the common law". A publication of defamatory matter which is excused by s 377 would be held by the common law to be published on an occasion of qualified privilege. Qualified privilege is based on the protection with which the law clothes a defendant who, without malice, publishes matter "in the discharge of some public or private duty, whether legal or moral, or in the conduct of (the publisher's) own affairs, in matters where his interest is concerned": per Parke B in Toogood v Spyring (2).


10. No narrow view is taken in considering whether the publication containing the defamatory matter was published on an occasion of qualified privilege. The universal principle on which qualified privilege is founded, as Willes J said in Henwood v Harrison (3), is that:
"the public convenience is to be preferred to private interests, and
that communications which the interests of society require to be unfettered may freely be made by persons acting honestly without actual malice, notwithstanding that they involve relevant comments condemnatory of individuals."
This passage was cited with approval by Lord Shaw of Dunfermline in Adam v Ward (4) and by Walsh JA in cases (5) arising under s 17 of the Defamation Act 1958 (NSW) which corresponded with s 377 of the Code. In Justin v Associated Newspapers Ltd, Walsh JA said (6):
"The broad principle underlying qualified privilege at common law is
that occasions exist in which it is desirable from the point of view of public policy that communications should be made freely. This freedom should be given priority over the right of an individual to be protected against the loss of his reputation."
In cases in which s 377(8) is raised as a defence, the subject of public interest is a critical factor in determining whether the defendant was free to publish the defamatory matter complained of. For that reason, the "subject of public interest" must be determined "with some exactness", as Windeyer J pointed out in Australian Consolidated Press Ltd v Uren (7). That subject furnishes the reference point for determining the availability of the excuse for the publication of defamatory matter allowed by s 377(8).


11. The judge, rather than the jury, has the function of determining the subjects which the public is free to discuss. The reason for entrusting this function to the judge is stated by Willes J in Henwood v Harrison (8):
"It would be abolishing the law of privileged discussion, and
deserting the duty of the Court to decide upon this as upon any other question of law, if we were to hand over the decision of privilege or no privilege to the jury. A jury, according to their individual views of religion or policy, might hold the church, the army, the navy, parliament itself, to be of no national or general importance, or the liberty of the press to be of less consequence than the feelings of a thin-skinned disputant."
It is not for the jury to diminish by an idiosyncratic approach the subjects of public interest which might attract qualified privilege. The common law's protection of freedom of speech is exemplified by a conservative approach to the evaluation of evidence of malice the existence of which would destroy the protection that would otherwise be available when defamatory matter is published on a privileged occasion. In Laughton v The Bishop of Sodor and Man (9), Collier LJ said:
"Some expressions here used undoubtedly go beyond what was necessary
for self-defence, but it does not, therefore, follow that they afford evidence of malice for a jury. To submit the language of privileged communications to a strict scrutiny, and to hold all excess beyond the absolute exigency of the occasion to be evidence of malice would in effect greatly limit, if not altogether defeat, that protection which the law throws over privileged communications."
This approach was followed by Mason J in Calwell v Ipec Australia Ltd (10), a case governed by s 17 of the Defamation Act 1958 (NSW):
"At common law it has been repeatedly said that a court should not
be quick to find evidence of malice in the terms of defamatory material published on a privileged occasion because so to do would restrict considerably, if not defeat, the protection which the law confers on privileged communications (see Laughton v Bishop of Sodor and Man; Adam v Ward). It has been said that where the words are utterly disproportionate to the facts this amounts to evidence of malice (Spill v Maule (11)), presumably on the footing that the extremity and exaggeration of the language is explicable only by reference to the existence of ill will in the defendant, but it does not suggest that a defendant is confined to saying what is strictly necessary to the occasion. The same comments may be made about the statutory concept of good faith to the extent to which it rests on ill will or other improper motive."


12. The privilege allowed at common law and prescribed by s 377(8) of the Code is intended to strike the appropriate balance between protection of private reputation on the one hand and public utility or public welfare on the other. The key concept in the striking of this balance is "subject of public interest". To ensure that the balance is rightly struck in the unlimited variety of cases that may arise, the key concept must be broad and flexible. Thereby the judge is enabled to evaluate, in the light of contemporary conditions, a plea that defamatory matter has been published in the discharge of some legal, social or moral duty.


13. In Uren's Case (12), the subjects of public interest were pleaded in extremely wide terms. Windeyer J said:
"At the trial the subject of public interest, in the course of the
discussion of which the defamatory statement was said to have been made, was loosely and widely defined. Presumably it would not have required much evidence to shew, if indeed it were seriously disputed, that the policies of the government concerning measures that should be taken for the military defence of Australia, and the views of different members of the Parliament on these topics, were a subject of current public discussion. This was obviously a subject of public interest. It would, I shall assume, have been open to his Honour to rule that the matter complained of was published in the course of that discussion. And a jury could not reasonably have found otherwise than that the public discussion of this subject was for the public benefit." (Emphasis added.)
His Honour does not cavil at the defining of a subject of public interest in wide terms, but he goes on to say that protection is not given (13) for "everything that may be said about a person that can be in some way related to a subject that is of public interest". No a priori restriction is placed on the subjects that may be classified as being "of public interest". The common law and the Code are so formulated as to leave to the trial judge "a question of extreme delicacy" in applying a doctrine that "is based solely upon public utility", as Evatt J pointed out in Telegraph Newspaper Co Ltd v Bedford (14).


14. The criterion for determining the privilege of an occasion - which s 377(8) of the Code expresses by reference to the public interest in the subject and the public benefit in discussing it - cannot be narrowly confined. The basic principle which has informed the law of qualified privilege since Toogood v Spyring safeguards the freedom of public discussion on which public welfare depends to no small extent.


15. In the judgment of Dawson, McHugh and Gummow JJ, their Honours canvass a line of fair comment cases and derive from them a concept of "subject of public interest" limited to the conduct of a person whose conduct inherently, expressly or inferentially invites public criticism or discussion. I am unable, with respect, to accept that limitation. In London Artists Ltd v Littler (15), Lord Denning MR said in reference to a defence of fair comment:
"There is no definition in the books as to what is a matter of
public interest. All we are given is a list of examples, coupled with the statement that it is for the judge and not for the jury. I would not myself confine it within narrow limits. Whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on; or what may happen to them or to others; then it is a matter of public interest on which everyone is entitled to make fair comment."


16. As I read the authorities, the subjects of public interest are as broad as Lord Denning stated them to be and as Windeyer J accepted them to be in Uren's Case. Take, for example, Cox v Feeney (16) where a newspaper published a report of an inspector of charities containing a letter reflecting on the plaintiff in his management of a college. Cockburn CJ, in the course of his directions to the jury, said (17):
"There can be no doubt whatever that this institution, with
reference to which these questions have arisen, is one of public concern. ... It appeals to the public, and holds out expectations with reference to the students whom their parents or guardians send there. It is, therefore, a public concern to the inhabitants of Birmingham and its district. That being so, the public have an interest in its government, its management, its discipline, and, what is essential, the management of its financial concerns. What is said with reference to its discipline, to its means of imparting instruction, to its means of fulfilling the objects for which it exists, have all of them great interest in the eyes of the people of the great town in which it exists." (Emphasis added.)

He invited the jury to address the question: "Is it beyond the legitimate province of a journalist to bring before them that information which may be of great value, and may throw light upon the causes from which this institution has become defective, instead of being of the greatest good?" (18) In 1865 his Lordship in Woodgate v Ridout (19) was dealing with a plea of fair comment on a subject of public interest arising out of an article relating to the conduct of the plaintiff as appeared in other litigation. His Lordship said (20):
"let it not be supposed that the law imposes any undue restraint
upon the freest and fullest comment upon all that passes in public courts of justice; for that the administration of justice should be made a subject for the exercise of public discussion is a matter of the most essential importance."
His Lordship focused on the public significance of the administration of justice, not on the conduct of any person in the administration of justice. His Lordship attributed to the public importance of the administration of justice the absence of "any undue restraint upon the freest and fullest comment upon all that passes in public courts of justice". Or take Eastwood v Holmes (21), which was not a fair comment case but one in which an antique dealer alleged that he had been defamed in an article reporting the sale as antiquities of items of recent fabrication. He failed to show that the article referred to him. Ex hypothesi, what Willes J added at the end of his judgment could not have referred to the plaintiff's conduct. His Lordship said (22):
"But further, I am of opinion that this is no libel, for that it is
protected by the privilege of fair discussion on a matter of public interest, it not appearing that it was malicious."
It was the discussion of deceitful practice in the sale of artefacts, not the conduct of an individual, that established the qualified privilege of the occasion of publication. In Purcell v Sowler (23), a report was published of a meeting of poor-law guardians at which ex parte charges of misconduct were made against a medical officer of a union workhouse. In the Court of Appeal, Cockburn CJ said (24):
"The management of the poor and the administration of the poor-law
in each local district are matters of public interest. In this management the medical attendance on the poor is matter of infinite moment, and consequently the conduct of a medical officer of the district may be of the greatest importance in that particular district, and so may concern the public in general." (Emphasis added.) In other words it was the subject of public interest which gave to the conduct of the medical officer its public importance. The claim of privilege was denied, but that was because the publication to the public at large of an ex parte allegation made at the meeting of the poor-law guardians - not a mere comment - exceeded what was reasonably sufficient for the occasion. Mellish LJ said (25):
"Such a communication as the present ought to be confined in the
first instance to those whose duty it is to investigate the charges. ... I do not mean to say that the matter was not of such public interest as that comments would not be privileged if the facts had been ascertained. If the neglect charged against the plaintiff had been proved, then fair comments on his conduct might have been justified. But that is a very different thing from publishing ex parte statements, which not only are not proved but turn out to be unfounded in fact."


17. In South Hetton Coal Company v North-Eastern News Association (26), the defendant published a criticism of the plaintiff colliery company's inaction in the face of insanitary conditions in the colliery village. Lopes LJ said (27):
"But is the matter commented on one of public interest? This is a
question for the Court. The attack upon the plaintiffs is in respect of the sanitary condition of their property, involving the health, comfort, and well-being of over two thousand human beings. The sanitary condition of this large population is placed under the control of a public body who do not interpose. Can it be said that this alleged state of things is not a matter of grave public interest? It may be that there is no case in the books holding a matter like this one of public interest; but I am clearly of opinion that a matter like this now before the Court may be made the subject of hostile criticism and of hostile animadversion, provided the language of the writer is kept within the limits of an honest intention to discharge a public duty. I agree with the Lord Chief Justice in holding this a matter of public interest."


18. In Dakhyl v Labouchere (28), the defendant described as "a quack" a plaintiff who held himself out to be a specialist for the treatment of deafness, ear, nose and throat diseases. The plaintiff had been associated with what the article described as "the notorious Drouet Institute for the Deaf". In the House of Lords, Lord Atkinson noted that the comment might not have been warranted by the facts stated in the article if the article were construed as a personal charge against the plaintiff, but the plea of fair comment ought to have been left to the jury in the event that the jury construed it as a comment on the system of the Drouet Institute, that system being a subject of public interest. Lord Loreburn LC, taking the same approach, said that it ought to have been left to the jury to decide whether "the libel went beyond a fair comment on the plaintiff and on the system of medical enterprise with which he associated himself, as a matter of public interest treated by the defendant honestly and without malice" (29).


19. The fair comment cases naturally relate to comments on the conduct or affairs of a plaintiff. Ex hypothesi, no defence of fair comment is required unless the defamatory imputation reflects on the plaintiff (30). Non constat that the subjects of public interest that are elements of the defence are limited to the conduct or affairs of the plaintiff. Rather, it is by reason of the involvement of the plaintiff's conduct or affairs in, or as an aspect of, a subject of public interest that a fair comment, made honestly and without malice, is excused in the interests of public discussion of the subject. Thus, in South Hetton Coal Company, Lord Esher MR said (31) of the criticism of the colliery company's neglect of village hygiene:
"I think that it related to so large a number of people, of such a
kind, to a district of such an extent, and to matters of such importance as to render it a matter of public interest that the conduct of the employers should be criticised."
The approach of the common law and, in my opinion, the approach of s 377(8) is to ascertain first whether the publication is dealing with a subject of public interest and then to identify the involvement or relationship of the plaintiff's conduct or affairs (being the conduct or affairs on which the defamatory comment is made) to that subject.


20. Textbooks of authority (32) are agreed in describing subjects of public interest in fair comment cases in terms which accord with Lord Denning's definition of matters "such as to affect people at large". Gatley's list includes, but is not exhausted by, "The public conduct of any man who holds, or seeks, a public office or a position of public trust" (33). Added to this, Gatley lists subjects of public interest which are not focused on conduct - subjects gathered under headings which include "Political and state matters", "Church matters", "The administration of justice", "The management of public institutions" and "The administration of local affairs by local authorities".


21. Of course, if the only or principal subject of a publication is the conduct of a private citizen whom the publication defames, the subject is not readily classified as one of public interest so as to attract the protection of qualified privilege to a publication to the general public (34). Generally speaking, the public interest is not advanced or protected by a general publication of defamatory matter touching the conduct or affairs of a private individual that do not intrude into a public forum. If a defendant raises a defence of qualified privilege in respect of the publication of such matter, the width of the pleaded subject of public interest (as well as the extent of the publication) is material to the availability of the defence. The more widely the subject of public interest is pleaded, the more likely it is that the public discussion of the subject is for the public benefit but the more difficult it may be for the defendant to resist the argument that defamatory matter canvassing the conduct or affairs of the plaintiff is not relevant to that subject. If the subject of public interest is pleaded more narrowly, it may be easier for the defendant to satisfy the judge that such defamatory matter was published in the course of or for the purposes of the discussion of the subject, but it may be more difficult for the defendant to show that the public discussion of that subject is for the public benefit.


22. However that may be, in Uren's Case, which was governed by the analogue of s 377 of the Code, the judgment of Windeyer J applies the common law's broad concept of "subject of public interest" in determining qualified privilege under the statute (35). Neither the text of that section nor, in my respectful opinion, an analysis of authority reveals any reason for limiting the concept to the conduct or affairs of the plaintiff or some other person.


23. The question whether the subject of a publication is a subject of public interest is for the judge to determine. But that is not the only issue for the judge to determine. The judicial task is "to determine all elements of (s 377(8)) except those that are expressly declared to be matters of fact and thus for the jury": per Windeyer J in Uren's Case (36). Section s 379 provides:
"Whether any defamatory matter is or is not relevant to any other
matter, and whether the public discussion of any subject is or is not for the public benefit, are questions of fact."
The elements of the definition of "good faith" are also for the jury (37). Apart from those issues, the availability of the defence contained in sub-s (8) of s 377 is for the judge to determine - acting, if need be, on findings of disputed fact made by the jury.


24. However, the judge does not rule on whether the defamatory matter was published "in the course of, or for the purposes of, the discussion of some subject of public interest" as if those words stood in isolation. Although it is a question of fact whether the public discussion of a particular subject is for the public benefit, the protection of s 377(8) is attracted only when the public discussion of the subject could be found by the jury to be for the public benefit. Thus the elements of s 377(8) for determination by the judge are whether the defamatory matter was published (i) "in the course of, or for the purposes of, the discussion" (ii) of a "subject of public interest" (iii) the public discussion of which could be found by the jury to be "for the public benefit". The third element is really subsumed into the question whether the subject is truly one of public interest in the sense that the subject must be one the public discussion of which is for the welfare of society (38).


25. These elements correspond with the questions to be addressed by a judge who rules on whether a publication is made on an occasion of qualified privilege at common law. At common law, when a judge rules that an occasion is privileged, the question whether the publication is in fact privileged passes to the jury. In Pullman v Hill and Co (39), Lopes LJ said:
"A confusion is often made between a privileged communication and a
privileged occasion. It is for the jury to say whether a communication was privileged; but the question whether an occasion was privileged is for the judge, and that question only arises when there has been publication to a third party."
True it is that the structure of s 377(8) does not divide the issues arising under that sub-section into "occasion of qualified privilege" (as a question of law for determination by the judge) and "privileged communication" (as a question of fact for determination by the jury). But the term "occasion" appears in the definition of "good faith" by reference to which the jury determines as a question of fact whether a communication was privileged. The "occasion" is determined by the judge by reference to the numbered paragraphs of s 377 (40).


"In the course of, or for the purposes of, the discussion"
26. This part of s 377(8) raises for consideration two issues: the need for discussion of the subject prior to the time of publication and the possibly discrete nature of the defamatory matter complained of when it is published as part of a more general article or broadcast.


27. In Loveday v Sun Newspapers Ltd (41), a relief worker who had been dismissed by the Canterbury Municipal Council sued the town clerk who, responding to an allegation of victimisation made by the secretary of the Canterbury District Unemployed Relief Council, said that the relief worker had engaged in conduct that was unsatisfactory. The allegation and response were published by the defendant newspaper. Citing the observation of Lord Hanworth MR in Chapman v Ellesmere (Lord) (42) that a duty to communicate information to the public "cannot arise in respect of a matter not yet made public at all", Dixon J said (43) that, before the newspaper published the controversy, "no situation existed casting upon the newspaper company any duty to communicate to anyone the rival views of the secretary of the unemployed relief council and the town clerk. It was simply news about a thing done by a public body." Then, in Uren's Case (44) Windeyer said:
"A matter is, I think, published in the course of the discussion of
some subject of public interest when, as the learned trial judge in the present case said, a discussion of that subject is currently going on. This accords with what Latham CJ said in Loveday v Sun Newspapers Ltd (45), 'The press cannot itself make a matter one of public interest by publishing statements about it (Chapman v Ellesmere (46))': and with the remark of Dixon J in the same case (47) that, when a matter of public interest is spoken of, what is meant is a matter that has already become of public interest."
If the subject matter of a publication is not, at the time of publication, a "subject of public interest", it is right to say that the publication is not made on an occasion of qualified privilege. But some subjects are of perennial or, at least, of enduring public interest, even though they are not subjects of active public discussion at the relevant time. If, at the time of publication, the subject is of enduring public interest so that there is a duty - legal, social or moral - to communicate the information contained in the defamatory matter to the audience to whom the publication is made, it is immaterial that there is no prior discussion of that subject. The subjects listed under Gatley's headings, above cited, include some subjects of enduring public interest. Even if there be no active discussion of a subject of enduring public interest, a publication on that subject may be made "for the purposes of" such a discussion.


28. Section 377(8) thus extends its protection to publications on all existing subjects of public interest, whether the public interest is enduring or has been generated in antecedent discussion. The particulars of "subjects of public interest" in the present case are examples of subjects of enduring public interest. Corruption of police by persons engaged in criminal activity and the political sanctioning of corrupt police conduct are subjects of enduring public interest and a publication of defamatory matter, if made for the purposes of the public discussion of those subjects, is made on a privileged occasion.


29. When the defamatory matter is sought to be excused as having been published in good faith "for the purposes of, the discussion of some subject of public interest", the purpose is to be ascertained not by reference to the defendant's state of mind but objectively by reference to the relationship of the defamatory matter to the subject of public interest. A similar test is imported by the phrase "in the course of", as Walsh JA said in Justin v Associated Newspapers Ltd (48):
"There remains the question whether it could be held or found that
the matter sued on was published 'in the course of' or 'for the purposes of' that discussion. I think it is clear that 'in the course of' does not signify merely a coinciding of the publication and the discussion in a temporal sense. There must be some real relationship or nexus between them. I am of opinion also that the question is primarily an objective one."


30. The relationship or nexus between the matter complained of and the postulated subject of public interest is what warrants the conferring of qualified privilege on the occasion of the publication. The question is not whether the imputation conveyed by the defamatory matter is a subject of public interest, but whether it is "in the public interest" (49) that the matter containing the imputation be published.


31. At common law, the relationship or nexus was described as "relevance". The issue of relevance was first considered by the judge in determining whether the occasion was one of qualified privilege but the jury had also to consider the same or a similar question. That question arose for the jury in determining whether, as a matter of fact, the defendant had honestly published the matter for the purpose of communicating information for the welfare of society. Dixon J spoke of the dual role of "relevance" in Guise v Kouvelis (50):
"The primary question for the Court is whether the occasion is
privileged. If the occasion is privileged other questions may arise and it is possible that they may be, or comprise, matter of law for the Court, though it is more likely that they will be questions of fact for the jury. The question whether the defamatory matter is or may be relevant to the occasion may arise in a form which the Court must decide. But it is for the jury to say under the issue of malice with what purpose the defamatory matter was published. That is to say whether the occasion was used for the purpose of the privilege is a matter for the jury".
The same position exists under the Code. The judge must consider "relevance" in order to ascertain the relationship or nexus that is imported by the phrase "in the course of, or for the purposes of"; the jury considers relevance as one of the elements of "good faith". This view accords with the view of Mason J in Calwell v Ipec Australia Ltd (51). Referring to the judgment of Walsh JA in Justin v Associated Newspapers Ltd, Mason J said (52):
"His Honour ... pointed out that the issue of relevance may arise
twice, first, as an element in the question whether the case falls within one of the categories mentioned in s 17 and, secondly, as an element in the statutory concept of good faith. Again, in my view the considerations to which his Honour referred do not justify the conclusion as a matter of statutory interpretation that it is for the jury to determine whether the conditions prescribed in s 17(a) to (h) (s 377(1) to (8)) are fulfilled."
Thus his Honour concluded (53) -
"that it is always a question of law for the judge to determine
whether the conditions prescribed by the various paragraphs of s 17 are fulfilled, subject to the jury deciding any disputed issues of fact on which the resolution of the ultimate question may depend".
Although an occasion of qualified privilege cannot be finally established until the jury is satisfied that the public discussion of the subject of public interest is for the public benefit, that issue will seldom be the ground on which a plea under s 377(8) will fail provided the judge is properly satisfied on the issues which that sub-section remits for the judge's determination. To displace the protection given by s 377(8), a plaintiff must prove an absence of good faith.

32. A particular problem arises when the matter complained of is merely a part of a wider publication, the overall subject of which is a subject of public interest. A question then arises whether the matter complained of is entitled to the protection which the subject of public interest would otherwise attract. The problem arose in Adam v Ward (54) where Lord Finlay LC said:
"The privilege extends only to a communication upon the subject with
respect to which privilege exists, and it does not extend to a communication upon any other extraneous matter which the defendant may have made at the same time. The introduction of such extraneous matter may afford evidence of malice which will take away protection on the subject to which privilege attaches, and the communication on the extraneous matter is not made upon a privileged occasion at all, inasmuch as the existence of privilege on one matter gives no protection to irrelevant libels introduced into the same communication."
The "extraneous matter" may fail to gain protection for either of two reasons: the publication of the defamatory matter may be held to fall outside the occasion of qualified privilege - a question for the judge - or the defamatory matter may show, in the context of the whole publication, express malice so as to destroy the privilege - a question for the jury.


33. Lord Dunedin in Adam v Ward (55), perceiving that, in either of these ways, defamatory matter might fail to acquire the privilege otherwise attracted to the publication as a whole, preferred to expand the occasion of privilege to encompass the defamatory matter and thus to protect the whole publication unless the defamatory matter afforded proof of malice. He said:
"You have a communication issued on a privileged occasion; and in
gremio of that communication are used words which are in themselves defamatory. What test is to be applied? On the one hand, it is said that, the occasion being privileged, the whole document is privileged, but that if in the document you find parts which are not really necessary to the fulfilment of the particular duty or right which is the foundation of the privilege on the occasion, then these parts may be used as evidence of express malice. In other words, it stands thus: Malice, which is of the essence of libel, is presumed from defamatory words. Privilege destroys that presumption. But the place of the implied malice which is gone may be taken by express malice which may be proved. It may be proved either extrinsically or intrinsically of the document, and such words in the document are apt as evidence. Thus Buckley LJ states as to the whole matter: 'There are two questions. The first whether the occasion was a privileged occasion, and if it was, then, secondly, whether there was any evidence of malice.'
On the other hand, it is said that it is not necessarily a question
of malice at all; that privilege applies to what is written and published in response to a duty or right; and that if anything is found in the thing published which is not reasonably appropriate to that duty or right, then privilege cannot extend to that. My Lords, I think it will be found that in most cases these are merely two ways of expressing the same point. But there is this to be said in favour of the former method, that it is a formula which as a test will fit most if not all cases, whereas the second would necessarily break down in a good many. For it could always be said with apparent force that it never can be necessary to incorporate in a statement made in response to a duty or right any defamatory statement which is not logically necessary to fulfil that duty or right."
His Lordship gave instances of cases (56) in which the privilege was held to protect the publication of defamatory matter where the defamatory matter went beyond what was "logically necessary". He accepted (57), however, that -
"(i)f the defamatory statement is quite unconnected with and
irrelevant to the main statement which is ex hypothesi privileged, then I think it is more accurate to say that the privilege does not extend thereto than to say, though the result may be the same, that the defamatory statement is evidence of malice."
Except in those clear cases where the defamatory matter is "extraneous" in the sense of being "unconnected with and irrelevant to the main statement", Lord Dunedin would have left the connection between the defamatory matter and the general subject matter of the publication as a factor for consideration by the jury in determining the issue of express malice. Lord Finlay's exposition, on the other hand, requires the judge to consider that connection in determining whether the publication of the defamatory matter fell within the occasion of qualified privilege that covered the publication of the "main statement" and entitles the jury to take the same or a similar factor into account in determining the issue of malice.


34. In Australia, Lord Finlay's analysis appears to have commanded assent in Code jurisdictions as well as at common law, as Walsh JA pointed out in Justin v Associated Newspapers Ltd (58). Thus, in Telegraph Newspaper Co Ltd v Bedford (59), Starke J said:
"publication relating to matters affecting the public good may
contain defamatory statements having no relevance thereto and consequently falling outside the protection given by the statute. It is then a further function of the Judge under the Code to determine whether the defendant has published anything outside that protection."


35. In other words, the criterion of relevance which determines whether defamatory matter is published "in the course of, or for the purposes of" a subject of public interest operates to determine whether s 377(8) protects defamatory matter which is part of an article or broadcast dealing with a subject of public interest. If the matter complained of has no material relationship to or nexus with the subject of public interest that appears from the other parts of the article or broadcast, it falls outside the scope of any privilege. Hence North J said in Truth (NZ) Ltd v Holloway (60) in a passage cited by Windeyer J with approval in Uren's Case (61):
"There is no principle of law, and certainly no case that we know of
which may be invoked in support of the contention that a newspaper can claim privilege if it publishes a defamatory statement of fact about an individual merely because the general topic developed in the article is a matter of public interest".
Protection for such a statement, however, is not determined by negating Lord Dunedin's test of "unconnected with and irrelevant to the main statement". It is determined by the positive criterion of relationship to or nexus with the relevant subject of public interest. That criterion is not satisfied unless the publication of the defamatory matter makes a contribution (62) to the discussion of the subject of public interest. In the present case, the question is whether those passages of the programme which contained the imputations found by the jury contributed to the discussion of the subjects of public interest specified in the defendant's particulars. Before answering that question, it is convenient to refer to the issues (other than the publication of defamatory matter) on which the plaintiff bore the onus of proof and the judge's function in considering the evidence on those issues.


36. As Adam v Ward shows, once an occasion of qualified privilege is found by the judge, at common law the plaintiff must show, if he can, that the defamatory matter was not published for the purpose of the privilege. In Guise v Kouvelis (63), Dixon J said:
"since upon this issue the burden is upon the plaintiff, a question
of the sufficiency of evidence to sustain the issue, which, of course, is one for the Court, is a question whether the plaintiff has displaced, not whether the defendant has established, privilege for the communication. Whether or not the occasion gives a privilege is a question of law for the judge, but whether the party has fairly and properly conducted himself in the exercise of it is a question for the jury: per Lord Campbell CJ in Dickson v Earl of Wilton (64)."
Under the Code, it has been established that good faith is always a matter of fact for the jury (65) but the onus of proving the absence of good faith rests on the plaintiff and that onus can be discharged only by credible evidence (66). Such evidence can sometimes be found in the extravagance of language of the publication but the warning given by Collier LJ in Laughton v Bishop of Sodor and Man (67) against too readily finding such evidence in matter published on an occasion of qualified privilege should be borne in mind. But, if there be no credible evidence on which a reasonable jury could find an absence of one or other of the elements of good faith, the jury should not be asked a question that invites them to consider whether there was an absence of that element.


Summary and conclusion
37. In a case governed by s 377(8) of the Code, the questions for determination by the judge are:
(i) what is the subject of discussion in the publication?

(ii) was that subject a subject of public interest the public
discussion of which could be found to be for the public benefit at the time of publication?
(iii) did the defamatory matter complained of contribute to the
discussion of that subject?
If the judge is satisfied that these questions should be answered affirmatively, the defendant must next satisfy the jury -
(iv) that the public discussion of the subject was for the public
benefit. If that question be answered affirmatively, the occasion is privileged. The onus is then on the plaintiff to satisfy the jury that -
(v) the defamatory matter was not relevant to the discussion of the
subject of public interest; or
(vi) the manner and extent of the publication of the defamatory
matter exceeded what was reasonably sufficient for the public discussion of the subject of public interest; or
(vii) the defendant was actuated to publish the defamatory matter by
ill-will to the plaintiff or by some other improper motive; or
(viii) the defendant believed the defamatory matter to be untrue.



38. In answering question (ii), a broad test is to be applied bearing in mind the underlying notion that the subject be of such a nature as to cast on the defendant a legal, social or moral duty to make the communication and a corresponding duty in the public to receive it. Such duties may arise when the topic is of legitimate concern to the public at large or to a substantial section of it (68). In answering questions (v) and (vi), the test is an objective one. As question (vi) is independent of question (vii), the Code differs from the common law in so far as the common law treats "manner and extent" merely as evidence of a defendant's malice: see per Griffith CJ in Dun v Macintosh (69). Before any of questions (v), (vi), (vii) or (viii) is put to the jury, the judge must be satisfied that there is evidence on which the jury might reasonably find an answer for the plaintiff.


39. In the present appeal, the live issues arise in reference to questions (iii), (v) and (vi). The conduct or affairs of the plaintiff were not themselves a subject of public interest at the time of the broadcast. Nor was the programme "The Moonlight State" a mere report of allegations made by third parties; it was an expose of facts which the ABC published on the strength of its own reporter's investigations, albeit there were cautionary references about acceptance of everything contained in the recited police reports. The fact that a police report had made allegations against the plaintiff was not itself a subject of public interest and was not capable of attracting qualified privilege (70). The publication of the defamatory matter complained of was to be protected, if at all, only as a contribution to the discussion of some wider subject. The wider subject was the corruption of police by persons engaged in criminal activity and the political sanctioning of corrupt police conduct.


40. The relevant parts of the programme identified the plaintiff as "The Marble Man", on the site of whose marble mine at Chillagoe was suspected to be a marijuana plantation and in whose camp a man wanted for burglary and attempted rape was suspected to be. A police visit to the site was proposed by a Detective Sergeant Ross Dickson, who has since retired from the police force, but the proposal was countermanded by instructions from higher authority. An instruction forbidding further drug investigations had been received by Dickson in April 1984 and Dickson's questioning of the instruction had gone unanswered by the Commissioner. An official report by a Detective Constable Jim Slade had identified the plaintiff as a senior member of the Bellino family who were said to be involved in a scheme for growing marijuana. An anonymous police officer informed the ABC reporter that an officer of police superior to Slade had offered Slade a bribe in the name of the plaintiff's brother, Geraldo Bellino. Although an allegation had been made in Parliament in 1981 that the three Bellino brothers, including the plaintiff, were the "godfathers" of a mafia controlling drugs, prostitution and gambling rackets in Queensland, the Premier had opened their marble mine in 1983 and the Government Party of that time had received a $50,000 cash donation from the Geraldo Bellino family. The programme recorded that the allegation of the donation was denied and that the plaintiff had denied any involvement in drug deals, attempts to corrupt police or any business association with his brothers.


41. There is no doubt but that the ABC had a social or moral duty to report the corruption of police and any apparent political sanctioning of corrupt police conduct in Queensland. It was a subject of legitimate interest to the Australian public at large. The allegations made against the plaintiff were important parts of the programme for they tended to support the allegations of the corruption of police by the Bellino family and the securing of political sanctioning of the corrupt police conduct. The defamatory matter complained of thus made a substantial contribution to the discussion of the subjects of public interest which were the theme of the programme. Question (iii) had to be answered in the affirmative and it was so answered by the trial judge.


42. His Honour's answer was not itself an issue on appeal to either the Court of Appeal or to this Court. The plaintiff objects to the trial judge's failure to identify precisely the subject of public interest in his directions to the jury with respect to question (iv). The plaintiff sought to have the programme's need to identify the plaintiff by name drawn to the jury's attention as a factor bearing on the question. For that reason, the plaintiff submitted that the third question put to the jury ought to have been in these terms:
"Was the public discussion of the plaintiff a matter of public
interest for the public benefit?"
The submission was misconceived. The subject to which this question referred was not "the plaintiff". Although the trial judge regrettably did not identify whether he had given an affirmative answer to question (iii) on the basis of some or all of the particulars furnished by the ABC the answer must have been given on a basis that was comprehended by the substantive particulars (that is, the particulars other than the mere "allegations made in relation thereto"). So much follows from the terms of the programme itself. The trial judge reminded the jury of the particulars furnished by the ABC. The plaintiff submits that, in the form in which the third question was put to the jury, the jury could not have answered it otherwise than favourably to the defendant. I agree, but the question was correctly framed. The answer was inevitable, whichever aspects of the particulars were the basis of the trial judge's finding on question (iii). The publication was made on an occasion of clear qualified privilege. The only significance which the naming of the plaintiff could have had was to one of the elements of "good faith".


43. The plaintiff's argument both before the trial judge and on appeal focused on two of those elements: relevance (question (v)) and manner and extent (question (vi)). The trial judge held there was insufficient evidence to allow either question to go to the jury. In the Court of Appeal, Davies JA held that the issue of relevance was rightly taken from the jury. His Honour's reasons have already been quoted. Demack J expressed his opinion that the naming of the plaintiff was relevant to the particularised subjects of public interest but he did not expressly hold that there was no evidence fit to go to the jury on that issue. Macrossan CJ, who would have allowed the appeal on the ground that the defamatory matter was not published on an occasion of qualified privilege, did not have to reach a conclusion on the sufficiency of evidence to go to the jury on the issue of relevance. The question for this Court is whether the conclusion of the trial judge and of Davies JA that there was insufficient evidence to go to the jury was right. In my opinion, it was.


44. The plaintiff's argument, in essence, is that the conduct and affairs of the plaintiff were not subjects of public interest and that the naming of the plaintiff, being unnecessary for the programme's exposition of police corruption, was irrelevant to the subject of public interest therein discussed. Or, at all events, it was open to a reasonable jury so to find. But the circumstance that the conduct and affairs of the plaintiff were not a subject of public interest is not to the point. His identity was an integral feature of the family network that was said to be at the heart of the police corruption and, inferentially, of political non-intervention. As Davies JA said, the question was not whether it was necessary to name the plaintiff but whether it was relevant to do so. Only one answer was reasonably open on the facts and that was unfavourable to the plaintiff. The trial judge was right in not putting a question on relevance to the jury.


45. Having regard to the seriousness of the subject discussed in the programme and its significance to the Australian public, the broadcasting of the programme to an Australia-wide audience as revealing the results of the ABC investigation of the subject could not reasonably have been seen to be excessive in manner or extent. Sometimes criminal conduct or conduct of a reprehensible kind can be reported under the protection of qualified privilege only if the report is made to those authorities who have the power and responsibility to act in response to a report of such conduct, as Purcell v Sowler (71) illustrates. But the present case is unusual for the very subject of public interest was the alleged inability to secure responsive action to criminal conduct from the State authorities who were charged with maintaining the rule of law. A public revelation of that state of affairs could not be seen as wanting in good faith because the public at large were informed of it. Question (vi) could have been answered only in the defendant's favour. It was not suggested that the ABC did not honestly believe in the truth of the imputations it was found to have made against the plaintiff. And the jury found that it was not actuated by ill-will or other improper motive in publishing the defamatory matter complained of.


46. I would not remit this matter for a new trial on the footing that the subject of public interest must be confined to the conduct of particular people. The subject of public interest revealed by the programme was not merely the conduct of particular corrupt police officers or the conduct of those who corrupted them but the climate or ambience of corruption which allegedly infected the police force and the alleged attitude of supine refusal to intervene on the part of those with political authority. The programme was an attack on a corrosive culture rather than on an individual's conduct. It was a state of affairs that constituted the subject of public interest and, indeed, that gave the programme its title of "The Moonlight State".

84 (1861) 2 F and F 508 at 523-524 (175 ER 1163 at 1170). Other parts of his Lordship's summing up indicate that even at this late date, he saw fair comment as a branch of the law of qualified privilege.
In the preceding year in Wilson v Reed (1860) 2 F and F 149 at 151 (175 ER 1000 at 1001), Hill J directed the jury:
"But the mere publishing in the columns of a newspaper something as to the character of another is a self-imposed duty, and does not constitute a lawful excuse in law within the meaning of the rule to which I have referred. There is, however, another rule, that it is lawful to discuss in the columns of a public journal matters of public interest, provided it be done bona fide, without actual malice, or the unnecessary making of personal imputations on any individual."
His Lordship's summing up also indicates that he saw the law of fair comment on matters of public interest as still part of the law of qualified privilege.
85 (1862) 7 H and N 891 at 898 (158 ER 730 at 733).
86 This form of pleading was approved in Penrhyn v The "Licensed Victuallers' Mirror" (1890) 7 TLR 1. See also the precedent in Gatley on Libel and Slander, 8th ed (1981) at 677:
"The said words were fair comment upon a matter of public interest namely the conduct of the plaintiff in the discharge of his duties as member of Parliament as alleged in the testimony of FW given on at the Central Criminal Court ... in the case of R v XYZ, a fair and accurate contemporaneous report of which testimony was published on page 5 of the said issue of the said newspaper."
87 (1865) 4 F and F 202 (176 ER 531).
88 (1865) 4 F and F 202 at 223-224 (176 ER 531 at 540).
89 Woodgate v Ridout (1865) 4 F and F 202 (176 ER 531).
90 Hibbins v Lee (1864) 4 F and F 243 (176 ER 549).
91 Hedley v Barlow (1865) 4 F and F 224 (176 ER 541).
92 Speight v Syme (1894) 16 ALT 71 at 73: "Fair comment may be shortly expressed thus. It is criticism and comments on, or conclusions drawn from, the public acts of a public man by you or by me, or by any individual in the community, or by the press." (In that case, the subject of public interest was the administration of the Victorian Railway Commissioner).
93 Broadbent v Small (1876) 2 VLR(L) 121 at 124: "The public acts or conduct of a person in a public office, are the legitimate subjects of criticism; but, apart from those acts or conduct, a public officer is no more obnoxious to criticism than a private individual"; Williams v Spowers (1882) 8 VLR(L) 82 at 101-102: "the public sayings and doings of a public man are public property, upon which every member of the community is entitled to offer fair comments".
94 (1866) LR 1 QB 686 at 689.
95 Parmiter v Coupland (1840) 6 M and W 105 at 108 (151 ER 340 at 342).
96 Dibdin v Swan and Bostock (1793) 1 Esp 28 (170 ER 269) (running a place of public entertainment); Carr v Hood (1808) 1 Camp 355 (170 ER 983) (writing books); cf Gardiner v John Fairfax and Sons Pty Ltd (1942) 42 SR(NSW) 171 (writing a novel); Stuart v Lovell (1817) 2 Stark 93 (171 ER 583) (publishing a newspaper); Dunne v Anderson (1825) 3 Bing 88 (130 ER 447) (petitioning Parliament); Soane v Knight (1827) M and M 74 (173 ER 1086) (architectural works); Thompson v Shackell (1828) M and M 187 (173 ER 1126) (painting a portrait); Macleod v Wakley (1828) 3 Car and P 311 (172 ER 435) (editing a medical journal); Green v Chapman (1837) 4 Bing (NC) 92 (132 ER 724) (exhibiting at a flower show); Gathercole v Miall (1846) 15 M and W 319 (153 ER 872) (preaching a sermon).
97 Halsbury, The Laws of England, 1st ed (1911), vol 18, Libel and Slander at 700-701:
"The need of the defence of fair comment on a matter of public interest does not arise if the statement complained of does not reflect on the plaintiff".
98 In Eastwood v Holmes (1858) 1 F and F 347 (175 ER 758), the plaintiff carried on business as an antique dealer and sued on an article that described certain leaden figures "reported to have been found in the Thames" and sold as antiquities as an attempt at extortion and deception. Willes J held (at 349-350 (175 ER 758 at 759)) that the plaintiff was not sufficiently identified, but that, if he had been, the publication was "protected by the privilege of fair discussion on a matter of public interest, it not appearing that it was malicious." Thus, if the plaintiff had been identified, the subject of public interest would have been the conduct of the plaintiff in selling fraudulent antiques to the public.
99 Odgers, A Digest of the Law of Libel and Slander, 1st ed (1881) at 36-37.
100 None of the post-1889 cases has departed from this basic understanding of a subject of public interest. In South Hetton Coal Company v North Eastern News Association (1894) 1 QB 133, for example, the Court of Appeal held that the conduct of a colliery company was a subject of public interest because the company was the owner or tenant of the bulk of houses in a colliery village which were occupied by colliers employed by the company and were alleged to be in a highly unsanitary state. Plainly, the conduct of the plaintiff invited public criticism because, as Lord Esher MR pointed out (at 140), "it related to so large a number of people, of such a kind, to a district of such an extent, and to matters of such importance as to render it a matter of public interest that the conduct of the employers should be criticised" (our emphasis). South Hetton Coal Company was applied by the Court of Appeal in London Artists Ltd v Littler (1969) 2 QB 375 where the Court held that the alleged conduct of the plaintiffs in conspiring to stop a successful stage play was a subject of public interest. Lord Denning MR said (at 391): "Whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on; or what may happen to them or to others; then it is a matter of public interest on which everyone is entitled to make fair comment." Lord Denning said that South Hetton Coal Company was a good example of a subject of public interest and cited Lord Esher's statement in that case that it was "a matter of public interest that the conduct of the employers should be criticised". Lord Denning said (at 391): "When three top stars and a satellite all give notice to leave at the same time - thus putting a successful play in peril - it is to my mind a matter of public interest in which everyone, Press and all, are entitled to comment freely."
101 (1891) AC 107 at 144-145.
102 (1891) AC 107 at 145.
103 Thus in the first edition of his work on The Law of Torts, (1887), Sir Frederick Pollock, after saying (at 219) that "(n)othing is a libel which is fair comment on a subject fairly open to public discussion", said (at 221-222):
"What acts and conduct are open to public comment is a question for the Court, but one of judicial common sense rather than of technical definition. Subject-matter of this kind may be broadly classed under two types.
The matter may be in itself of interest to the common weal, as the conduct of persons in public offices or affairs, of those in authority, whether imperial or local, in the administration of the law, of the managers of public institutions in the affairs of those institutions, and the like.
Or it may be laid open to the public by the voluntary act of the person concerned. The writer of a book offered for sale, the composer of music publicly performed, the author of a work of art publicly exhibited, the manager of a public entertainment, and all who appear as performers therein, the propounder of an invention or discovery publicly described with his consent, are all deemed to submit their work to public opinion, and must take the risks of fair criticism; which criticism, being itself a public act, is in like manner open to reply within commensurate limits."
This passage, although doubting that "subject of public interest" had a technical definition, makes it clear that it is the "acts and conduct" of particular persons that constitute the subjects of public interest.
104 Gamer's Motor Centre (Newcastle) Pty Ltd v Natwest Wholesale Australia Pty Ltd (1987) 163 CLR 236 at 244-245; Vagliano (1891) AC 107 at 145.
105 including police officers.
106 Because s 377(8) provides a defence of qualified protection, it is not necessary for the defendant to prove that the conduct discussed is true. It is sufficient that the conduct is believed to be true, and the onus is on the plaintiff to prove that the defendant did not believe the "facts" discussed to be true: Rigby v Associated Newspapers Limited (1966) 68 SR(NSW) 414; Pervan (1993) 178 CLR 309.
107 Queensland, Legislative Assembly, Parliamentary Debates, (Hansard) 19 July 1889 at 737.
108 At common law, it would be meaningless to speak of a fair comment on "organised crime and corruption in Queensland" or a fair comment on "the existence of illegal activities" or a fair comment on "trafficking in illegal drugs" without the comment referring, expressly or impliedly, to the conduct of individuals whose office or public activities invited public criticism and discussion. Thus, a comment on the conduct of a private individual who had secretly engaged in organised crime could not be justified at common law as a fair comment on a subject of public interest, no matter for how long or how heavily he or she had been engaged in organised crime. It is the failure to grasp this point that has led to the view that "some subject of public interest" in s 377(8) includes general abstractions unrelated to the conduct of particular individuals.
109 (1966) 117 CLR 185 at 209.
110 Kane v Mulvany (1866) IR 2 CL 402.
111 (1966) 86 WN (Pt 1) (NSW) 17 at 40.
112 (1993) 178 CLR 309.
113 In this case, the defendant tendered sixty-seven newspaper articles published over a number of years to prove the existence of a public discussion of such subjects as corruption. See also the reference to the "'conglomerate' exhibit" of extracts of newspaper items in Rigby v Associated Newspapers Ltd (1966) 68 SR (NSW) 414 at 424.
114 For example, the defamatory matter concerning the plaintiff may be the sole subject of a publication but that publication may refer expressly or inferentially to an existing discussion of the subject of public interest in a way that establishes that the defamatory matter was published in the course of or for the purposes of that discussion.
115 Uren (1966) 117 CLR 185 at 213; Justin (1966) 86 WN (Pt 1) (NSW) 17 at 40.
116 Justin (1966) 86 WN (Pt 1) (NSW) 17 at 40.
117 Justin (1966) 86 WN (Pt 1) (NSW) 17 at 46, 51.
118 Uren (1966) 117 CLR 185 at 213.
119 (1966) 117 CLR 185 at 213.
120 It is well established that, in workers' compensation statutes, the phrase "injury arising ... in the course of employment" requires only a temporal connection between the injury and the employment. An injury occurring while engaged in employment occurs "in the course of" employment whether or not there is any nexus or causal connection with the employment: Kavanagh v The Commonwealth (1960) 103 CLR 547; The Commonwealth v Oliver (1962) 107 CLR 353; Weston v Great Boulder Gold Mines Ltd (1964) 112 CLR 30. Cases such as Bill Williams Pty Ltd v Williams (1972) 126 CLR 146, where the claim of the worker failed, were decided on the basis that the employment had been interrupted.
121 See Justin (1966) 86 WN (Pt 1) (NSW) 17 at 41.
122 (1934) 50 CLR 632 at 647.
123 (1966) 86 WN (Pt I) (NSW) 17 at 36-38.
124 The Court of Appeal followed Justin in Mackie v Australian Consolidated Press Ltd (1974) 1 NSWLR 561 at 565, 573 and 582.
125 Justin (1966) 86 WN (Pt 1) (NSW) 17 at 38, 40, 41.
126 (1917) AC 309 at 318.
127 (1966) 86 WN (Pt 1) (NSW) 17 at 34.
128 Vagliano (1891) AC 107 at 145.
129 cf Sutherland v Stopes (1925) AC 47 at 55, 67-68, 70.
130 s 366; Pervan (1993) 178 CLR 309 at 333.
131 His Honour cited Queensland Newspapers Pty Ltd and Hardy v Baker (1937) St R Qd 153 at 168; Rigby v Associated Newspapers Ltd (1966) 68 SR(NSW) 414 at 426; Clines v Australian Consolidated Press Ltd (1966) 84 WN (Pt 2) (NSW) 86 at 97; Bridges v Australian Consolidated Press Ltd (1967) 70 SR(NSW) 52; Rigby v Associated Newspapers Ltd (1969) 1 NSWR 729 at 731; Plumb v Australian Consolidated Press Ltd (1975) 2 NSWLR 414 at 430; Pervan v The North Queensland Newspaper Co Ltd (1991) ATR 81-119 at 69,125-69,126.
132 In that case, there would have been no evidence that the manner or extent of the publication exceeded what was "reasonably sufficient for the occasion".
133 A defence of a fair report of the proceedings of the Legislative Assembly of Queensland was also pleaded by way of Amended Defence. This defence was not left to the jury and is not involved in this appeal.
134 This relocation was effected by s 459(1) and (2) and Sched 3, Pt 1 of the Criminal Code 1995 (Q) which came into operation on 16 June 1995.
135 The substance of s 377 of the Code is now enacted as s 16 of the Defamation Act (see note 134).
136 The substance of s 366 of the Code is now enacted as s 4 of the Defamation Act (see note 134).
137 (1993) 178 CLR 309 at 333.
138 The substance of ss 378 and 379 of the Code is now enacted as ss 17 and 19 of the Defamation Act (see note 134).
139 See, for example, Telegraph Newspaper Co Ltd v Bedford (1934) 50 CLR 632 at 647; Musgrave v The Commonwealth (1937) 57 CLR 514 at 552. See also Calwell v Ipec Australia Ltd (1975) 135 CLR 321 at 330, concerning a provision in very similar terms to s 377.
140 Australian Consolidated Press Ltd v Uren (1966) 117 CLR 185 at 208; Telegraph Newspaper Co Ltd v Bedford (1934) 50 CLR 632 at 658.
141 Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309 at 317-318.
142 Section 379 of the Code.
143 (1969) 2 QB 375 at 391.
144 See Sungravure Pty Ltd v Middle East Airlines (1975) 134 CLR 1 (a case concerning the Defamation Act 1958 (NSW)) at 22 per Mason J, referring to Bank of England v Vagliano Brothers (1891) AC 107 at 144-145 per Lord Herschell.
145 London Artists Ltd v Littler (1969) 2 QB 375 at 391 per Lord Denning MR, speaking of a "matter of public interest" in relation to the common law defence of fair comment.
146 (1966) 117 CLR 185 at 207 speaking of s 17(h) of the Defamation Act 1958 (NSW) (now repealed) which was in the same form as s 377(8) of the Code. See also Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309 at 319.
147 The substance of s 375 of the Code is now enacted as s 14 of the Defamation Act (see note 134).
148 See, for example, Hibbins v Lee (1864) 4 F and F 243 (176 ER 549); Hedley v Barlow (1865) 4 F and F 224 (176 ER 541).
149 See, for example, Carr v Hood (1808) 1 Camp 355n (170 ER 983); Dunne v Anderson (1825) 3 Bing 88 (130 ER 447); Campbell v Spottiswoode (1863) 3 F and F 421 (176 ER 188).
150 (1894) 1 QB 133.
151 (1894) 1 QB 133 at 140. The other two members of the Court of Appeal (Lopes and Kay LJJ) also took a broad general approach to the question whether the subject of the article was a matter of public interest. Lopes LJ said (at 143): "The attack upon the plaintiffs is in respect of the sanitary condition of their property, involving the health, comfort, and well-being of over two thousand human beings. The sanitary condition of this large population is placed under the control of a public body who do not interpose. Can it be said that this alleged state of things is not a matter of grave public interest?" Kay LJ said (at 144-145): "Considering the extent of colliery business in this country, the enormous number of men employed in it, the legislative provisions that have of necessity been made concerning the mode of carrying it on, as for instance in the ventilation of coal mines, considering the number of people in this particular village, the fact that the houses in which they live are supplied by the colliery proprietors rent free as part of the colliers' wages, that this very village is within the jurisdiction of a rural sanitary authority, and that the article complained of seems from the commencement of it to be one of a series dealing with the homes of pitmen in the county of Durham, I am of opinion that the subject of the article is a matter of public interest".
152 Australian Consolidated Press Ltd v Uren (1966) 117 CLR 185 at 209 per Windeyer J, approving the trial judge's ruling to this effect.
153 (1966) 117 CLR 185 at 209.
154 (1938) 59 CLR 503.
155 (1915) 31 TLR 299 at 304 per Buckley LJ.
156 (1938) 59 CLR 503 at 521. The other was a statement to similar effect by Latham CJ in the same case at 513. See also Truth (NZ) Ltd v Holloway (1960) NZLR 69 at 84; Justin v Associated Newspapers Ltd (1966) 86 WN (Pt 1) (NSW) 17 at 40 per Walsh JA.
157 See, for example, Crate v McCallum (1905) 11 OLR 81; Adam v Ward (1917) AC 309; Kinney v Fisher (1921) 62 SCR 546. See also the cases cited in note 149.
158 See Hibbs v Wilkinson (1859) 1 FandF 608 (175 ER 873).
159 (1994) 182 CLR 104 at 140 per Mason CJ, Toohey and Gaudron JJ.
160 Australian Consolidated Press Ltd v Uren (1966) 117 CLR 185 at 209 per Windeyer J, speaking of s 17(h) of the Defamation Act 1958 (NSW) (now repealed) which was in the same form as s 377(8) of the Code.
161 See Justin v Associated Newspapers Ltd (1966) 86 WN (Pt 1) (NSW) 17 at 51-52 per Jacobs JA; Mackie v Australian Consolidated Press Ltd (1974) 1 NSWLR 561 at 573-574 per Hutley JA; Calwell v Ipec Australia Ltd (1975) 135 CLR 321 at 330 per Mason J.
162 (1917) AC 309 at 320-321; see also at 318 per Lord Finlay LC, 327 per Lord Dunedin, 348 per Lord Shaw of Dunfermline.
163 (1917) AC 309 at 321.
164 See Horrocks v Lowe (1975) AC 135 at 150. See also Royal Aquarium and Summer and Winter Garden Society v Parkinson (1892) 1 QB 431 at 444 per Lord Esher MR, 454 per Lopes LJ.
165 This is also the case as regards common law malice. In Horrocks v Lowe (1975) AC 135 at 152, Lord Diplock interpreted the words of Lord Esher MR in Royal Aquarium and Summer and Winter Garden Society v Parkinson (1892) 1 QB 431 at 444 as "disposing of a suggestion ... that reckless disregard of whether what was stated was true or false did not constitute malice unless it were due to personal spite directed against the individual defamed".