Bennette v Cohen

[2009] NSWCA 60

Appeal Outcome: Special leave dismissed with costs by the High Court, 3 November 2009 s85/2009

New South Wales

Court of Appeal

CITATION:	Bennette v Cohen [2009] NSWCA 60
HEARING DATE(S):	18 December 2008
JUDGMENT DATE:	24 March 2009
JUDGMENT OF:	Ipp JA at 1; Tobias JA at 74; Campbell JA at 206
DECISION:	(a) Appeal allowed. (b) Set aside the orders made by Harrison J on 10 July 2007. (c) Judgment for the appellant against the respondent in the sum of $15,000. (d) The respondent to pay the appellant’s costs of the proceedings at first instance, of the summons for leave to appeal and of the appeal but to have with respect to the latter a certificate under the Suitors’ Fund Act 1951, if otherwise qualified.
CATCHWORDS:	DEFAMATION – privilege – qualified privilege – statements made in respect of a duty or interest – particular statements – on matter of public interest – what constitutes privileged occasion, communication or conduct – whether respondent had an interest in making the defamatory statements and the audience had a reciprocal interest in receiving them – if so, whether the defamatory statements were connected to the occasion of qualified privilege - fair comment – in general – foundation of fact
LEGISLATION CITED:	Crimes Act 1900 Defamation Act 1974 Defamation Act 2005 Suitors’ Fund Act 1951
CATEGORY:	Principal judgment
CASES CITED:	Adam v Ward [1917] AC 309 Aktas v Westpac Banking Corporation Pty Ltd [2009] NSWCA 9 Andreyevich v Kosovich and Publicity Press (1938) Pty Ltd (1947) 47 SR (NSW) 357 Austin v Mirror Newspapers Ltd [1986] 1 AC 299 Bashford v Information Australia (Newsletter) Pty Ltd [2004] HCA 5; (2004) 218 CLR 366; Bashford v Information Australia (Newsletter) Pty Ltd [2001] NSWCA 470 Bellino v Australian Broadcasting Corporation [1996] HCA 47; (1996) 185 CLR 183 Bennette v Cohen [2007] NSWSC 739; (2007) Aust Torts Reports 81-897 Dunnet v Nelson (1926) SC 764 Guise v Kouvelis [1947] HCA 13; (1947) 74 CLR 102 Horrocks v Lowe [1975] AC 135 Howe and McColough v Lees [1910] HCA 67; (1910) 11 CLR John Fairfax Publications Pty Ltd v O’Shane [2005] NSWCA 164 Lang v Willis [1934] HCA 51; (1934) 52 CLR 637 Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 Lindholdt v Hyer [2008] NSWCA 264 Moit v Bristow [2005] NSWCA 372 Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 O’Sullivan v Schubert [1963] VR 143 Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1 Skalkos v Assaf [2002] NSWCA 14; (2002) Aust Torts Reports 81-644 Stephens v Western Australian Newspapers Limited [1994] HCA 45; (1994) 182 CLR 211 Telegraph Newspaper Company Limited v Bedford (1934) 50 CLR 632 Toogood v Spyring (1834) 1 Cr M & R 181; 149 ER 1044
PARTIES:	Jerry Lee Bennette Ian Cohen
FILE NUMBER(S):	CA 40508/07
COUNSEL:	A: B McClintock SC / A Dawson R: C Evatt / R Rasmussen / J Rawlings
SOLICITORS:	A: Banki Haddock Fiora Lawyers, Sydney R: Carters Law Firm, Auburn
LOWER COURT JURISDICTION:	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S):	SC 20985/01
LOWER COURT JUDICIAL OFFICER:	Harrison J
LOWER COURT DATE OF DECISION:	10 July 2007
LOWER COURT MEDIUM NEUTRAL CITATION:	Bennette v Cohen [2007] NSWSC 739

CA 40508/07
SC 20985/01

IPP JA
TOBIAS JA
CAMPBELL JA

Tuesday 24 March 2009

JERRY LEE BENNETTE v IAN COHEN

The appellant sued the respondent for defamation in respect of statements made at meetings held at the Suffolk Park Community Hall on 7 April 2001 (the first matter complained of) and 19 May 2001 (the second matter complained of). The purpose of the meetings was to raise funds to assist Bill Mackay in his defence of defamation proceedings which had been commenced against him by the appellant.

At a trial in August 2004 held pursuant to s 7A of the Defamation Act 1974 a jury found that each of the matters complained of conveyed the following defamatory imputations:

(a) The appellant is a thug

(b) The appellant is a bully

and that the second matter complained of also conveyed the defamatory imputation that

(c) The appellant improperly manipulated the system by bringing defamation proceedings for the purpose of stifling public protest

The respondent pleaded a number of defences before Harrison J both at common law and under the Act. On 10 July 2007 his Honour upheld the respondent’s defences of common law qualified privilege and comment. He also rejected the appellant’s contention that the defence of common law qualified privilege had been defeated by the respondent’s malice. Notwithstanding that the appellant had therefore failed, his Honour provisionally assessed damages in the sum of $15,000.

The appellant appealed against the primary judge’s decision upholding the defences of common law qualified privilege and comment as well as his Honour’s failure to find malice.

Held, allowing the appeal –

As to the defence of common law qualified privilege:

1. Per Ipp, Tobias and Campbell JJA

The necessary requirement for an occasion of qualified privilege is a reciprocity of duty or interest. That is, the publisher of a statement must establish that he or she had a duty or interest to make the statements and the audience had a reciprocal duty or interest to receive them.

Bashford v Information Australia (Newsletter) Pty Ltd

[2004] HCA 5; (2004) 218 CLR 366 applied

Roberts v Bass

[2002] HCA 57; (2002) 212 CLR 1 applied

Toogood v Spyring

(1834) 1 Cr M & R 181; 149 ER 1044 applied

2. Per Ipp and Campbell JA

For the privilege to attach to the occasion in question, as a matter of public policy it must be in the general interest of the whole community that the type of material in question be published in the type of circumstances in question, notwithstanding that it is defamatory of a third party.

Toogood v Spyring

(1834) 1 Cr M & R 181; 149 ER 1044 applied

Stephens v Western Australian Newspapers Limited

[1994] HCA 45; (1994) 182 CLR 211 considered

Howe and McColough v Lees

[1910] HCA 67; (1910) 11 CLR considered

Andreyevich v Kosovich and Publicity Press (1938) Pty Ltd

(1947) 47 SR (NSW) 357 considered

Guise v Kouvelis

[1947] HCA 13; (1947) 74 CLR 102 considered

3. Per Tobias JA

For the privilege to attach to the occasion in question, the relationship between the publisher and the recipient must be such that the recipient has a need to know the information and the publisher has a duty to provide it so as to enable an informed decision to be made with respect to the recipient’s affairs or course of action.

Horrocks v Lowe

[1975] AC 135 considered

Aktas v Westpac Banking Corporation Pty Ltd

[2009] NSWCA 9 considered

Morosi v Mirror Newspapers Ltd

[1977] 2 NSWLR 749 considered

Austin v Mirror Newspapers Ltd

[1986] 1 AC 299 considered

Bashford v Information Australia (Newsletter) Pty Ltd

[2004] HCA 5; (2004) 218 CLR 366 considered

4. Per Ipp and Campell JJA

The occasion must not be used for some purpose or motive foreign to the interest that protects the making of the statement.

Roberts v Bass

[2002] HCA 57; (2002) 212 CLR 1 applied

Andreyevich v Kosovich and Publicity Press (1938) Pty Ltd

(1947) 47 SR (NSW) 357 considered

O’Sullivan v Schubert

[1963] VR 143 considered

Morosi v Mirror Newspapers Ltd

[1977] 2 NSWLR 749 referred to

5. Per Ipp, Tobias and Campbell JJA

In order for the occasion to be protected by qualified privilege, there must be a significant connection between the imputation and the privileged occasion.

Bashford v Information Australia (Newsletter) Pty Ltd

[2001] NSWCA 470 applied

Bashford v Information Australia (Newsletter) Pty Ltd

[2004] HCA 5 applied

Skalkos v Assaf

[2002] NSWCA 14; (2002) Aust Torts Reports 81-644 considered

Aktas v Westpac Banking Corporation Pty Ltd

[2009] NSWCA 9 referred to

6. Per Ipp, Tobias, Campbell JJA

If a publication is made to a large audience, a claim of qualified privilege at common law will fail unless the members of the audience all have in interest in knowing the truth.

Lang v Willis

[1934] HCA 51; (1934) 52 CLR 637 applied

Lange v Australian Broadcasting Corporation

[1997] HCA 25; (1997) 189 CLR 520 applied

Guise v Kouvelis

[1947] HCA 13; (1947) 74 CLR 102 considered

7. Per Ipp, Tobias, Campbell JJA

Ordinarily, a volunteered statement is privileged only where there is a pressing need to protect the interest of the defendant or a third party, or where the defendant has a duty to make a statement. The defence of qualified privilege does not give officious and interfering persons a wide licence to defame.

Bashford v Information Australia (Newsletter) Pty Ltd

[2004] HCA 5; (2004) 218 CLR 366 applied

Guise v Kouvelis

[1947] HCA 13; (1947) 74 CLR 102 considered

8. Per Ipp, Tobias and Campbell JJA

(a) The primary judge erred in finding that the subject matter of the meetings was a comparison of the relative merits of the protagonists in the litigation.

(b) The subject matter of the meetings was the raising of funds to cover Bill Mackay’s legal costs in his defence of the proceedings instituted against him by the appellant.

(c) On such an occasion, the respondent had no interest in describing the appellant as he did and the audience had no interest in receiving those statements.

(d) Even if the respondent had an interest in the occasion, the defamatory statements were foreign to that interest and there was no connection between the subject matter of the meeting and the defamatory statements.

(e) As common law qualified privilege did not attach to the occasions in question, it became unnecessary to consider whether the defence was defeated by malice.

As to the defence of comment:

1. Per Tobias JA, Ipp JA and Campbell JA agreeing

The defence of comment requires that the imputations are truly comment and not statements of fact, the comment is based on proper material for comment and the comment relates to a matter of public interest. The test is whether the ordinary reasonable listener would have concluded that the assertions made were conveyed as statements of fact or as opinion.

John Fairfax Publications v O’Shane [2005] NSWCA 164 referred to

2. Per Tobias JA, Ipp JA and Campbell JA agreeing

Applying this test, the imputations that the appellant was a thug and a bully were not comment. The imputation that the appellant had improperly manipulated the system by bringing defamation proceedings to stifle public protest was comment.

(a) Appeal allowed.

(b) Set aside the orders made by Harrison J on 10 July 2007.

(c) Judgment for the appellant against the respondent in the sum of $15,000.

(d) The respondent to pay the appellant’s costs of the proceedings at first instance, of the summons for leave to appeal and of the appeal but to have with respect to the latter a certificate under the Suitors’ Fund Act 1951, if otherwise qualified.

CA 40508/07
SC 20985/01

IPP JA
TOBIAS JA
CAMPBELL JA

Tuesday 24 March 2009

JERRY LEE BENNETTE v IAN COHEN

Judgment

1 IPP JA: I have had the benefit of reading the reasons to be published by Tobias JA. I agree with his Honour’s statement of the facts. I wish to express in my own words my reasons for coming to the same conclusion as his Honour in regard to the issue of common law qualified privilege. Otherwise I agree with his Honour’s reasons and proposed orders.

The narrow test of “interest” as an element of common law qualified privilege

2 A critical issue in this appeal is whether the two “matters complained of” are subject to common law qualified privilege. The trial judge, Harrison J, answered this question in the affirmative: see Bennette v Cohen [2007] NSWSC 739 at para 235. The appellant, Mr Bennette, challenges this finding.

3 In examining the issue that so arises, it is first necessary to identify the relevant occasions when the matters complained of were published. By the term “occasions” in this context I do not mean “privileged” occasions, I mean simply the events at which the defamatory material was published. Having so identified the occasions, it is then necessary to determine whether they are subject to qualified privilege at common law.

4 The classic statement of the test for common law qualified privilege is that made by Parke B in Toogood v Spyring (1834) 1 Cr M & R 184 (at 193). According to his Lordship, a defamatory publication is actionable “unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned.”

5 In Bashford v Information Australia (Newsletters) Pty Limited (2004) HCA 5; (2004) 218 CLR 366 Gleeson CJ, Hayne and Heydon JJ pointed out (at [10], 373) that the principles expressed in Toogood v Spyring “are stated at a very high level of abstraction and generality.” Their Honours remarked:

“Concepts which are expressed as “public or private duty, whether legal or moral” and “the common convenience and welfare of society” are evidently difficult of application. When it is recognised, as it must be, that ‘the circumstances that constitute a privileged occasion can themselves never be catalogued and rendered exact’ ( London Association for Protection of Trade v Greenlands [1916] 2 AC 15 at 22 per Lord Buckmaster LC), it is clear that in order to apply the principles a court must ‘make a close scrutiny of the circumstances of the case, of the situation of the parties, of the relations of all concerned and of the events leading up and surrounding the publication.’ ( Guise v Kouvelis (1947) 74 CLR 102 at 116 per Dixon J).” (Some citations omitted.)

6 The very high level of abstraction and generality apparent in the Toogood v Spyring test is manifest in many subsequent statements seeking to set out the requirements of common law qualified principle. I shall give two examples.

7 In Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1 Gaudron, McHugh and Gummow JJ said (at [62], 26):

“The common law protects a defamatory statement made on an occasion where one person has a duty or interest to make the statement and the recipient of the statement has a corresponding duty or interest to receive it.” (Citation omitted.)

8 In Bashford McHugh J (who dissented in the outcome) said at [53], 385-386):

“At common law, a defamatory statement receives qualified protection when it is made in discharge of a duty or the furtherance or protection of an interest of the maker of the statement or some person with whom the publisher has a direct business, professional or social connection, and the recipient of the statement has a corresponding duty to receive or interest in receiving it. Lord Campbell CJ stated the principle in Harrison v Bush (1955) 5 E & B 344 at 348 as follows:
‘A communication made bona fide upon any subject matter in which the party communicating has an interest, or in reference to which he has a duty, is privileged, if made to a person having a corresponding interest or duty, although it contain criminatory matter which, without this privilege would be slanderous and actionable.’” (Citation omitted.)

9 The application of such broad statements of principle is the first step in determining whether an occasion is subject to qualified privilege at common law. The next step is to proceed with the requisite close scrutiny of all the circumstances of the case. Those circumstances will include (as Dixon J states in Guise v Kouvelis (1947) 74 CLR 102 at 116) the situation of the parties, the relations of all concerned and the events leading up to and surrounding the publication. They will also include the matter complained of (Bashford at [54] per McHugh J).

10 When read in isolation, the traditional Toogood v Spyring formulation of the applicable test gives the impression that common law qualified privilege is capable of having a very wide reach. That, however, is not the case. The application of this privilege is confined to strict limits. It was for this reason (as explained in Morosi v Mirror Newspapers [1977] 2 NSWLR 749 at 797) that the relatively narrow scope of common law qualified privilege gave rise to s 22 of the Defamation Act 1974 (the current equivalent being s 30 of the Defamation Act 2005). Dissatisfaction with the limitations of common law qualified privilege caused Parliament to enact s 22, thereby creating a statutory defence of qualified privilege that rested on a far broader meaning of “interest” than is the case at common law: see also Austin v Mirror Newspapers Limited (1985) 3 NSWLR 354; [1986] AC 299 at 359 (312) per the Privy Council.

The criteria applicable to the scrutiny of the circumstances of the case

11 There is no exhaustive statement of the criteria that must be applied when undertaking the “scrutiny of the circumstances of the case”, nor can there be. Nevertheless, many statements have been made in cases of high authority that provide useful guidelines.

12 In Stephens v Western Australian Newspapers Limited [1994] HCA 45; (1994) 182 CLR 211 Brennan J observed (at 242) that “interest” was not to be equated with curiosity. His Honour said:

“It is used in a non-technical sense to mean that the publication is made for the welfare of society.”

13 The notion of the “welfare of society” is closely allied to “public interest”. The importance of the public interest in assessing the limits of qualified privilege at common law has often, and authoritatively, been stressed. In Bashford, Gummow J referred (at [136], 416) to the statement of Parke B in Toogood v Spyring in regard to the “publication of statements … made in the discharge of some public or private duty, whether legal or moral”. His Honour noted that Parke B had said, “If fairly warranted by any reasonable occasion or exigency, and honesty made, such communications are protected for the common convenience of the welfare of society”. Gummow J pointed out that Griffith CJ in Howe and McColough v Lees [1910] HCA 67; (1910) 11 CLR had explained (at 368-369), in regard to this passage, that:

“The reference to society does not mean that the person who makes the communication is under any obligation to publish, and is justified in publishing, it to the public at large, but that the interests of society in general require that a communication made under such circumstances to the particular person should be protected. The term ‘moral duty’ is not used in a sense implying that a man who failed to make the communication under the circumstances would necessarily be regarded by his fellows as open to censure, but in the sense implying that it was made on an occasion on which a man who desired to do his duty to his neighbour would reasonably believe that he ought to make it. It is obviously impossible to lay down a priori an exhaustive list of such occasions. The rule being founded upon the general welfare of society, new occasions for its application will necessarily arise with continually changing conditions.”

14 Gummow J repeated (at [140], 417) the caution given by Jordan CJ in Andreyevich v Kosovich and Publicity Press (1938) Pty Ltd (1947) 47 SR (NSW) 357 (at 363) that in order for the defendants in that case to succeed in the defence of qualified privilege:

“[I]t was necessary that they should show by evidence that both the givers and receivers of the defamatory information had a special and reciprocal interest in its subject matter, of such of kind that it was desirable as a matter of public policy, in the general interest of the whole community of New South Wales, that it should be made with impunity, notwithstanding that it was defamatory of a third party.”

15 Guise v Kouvelis is illustrative of the requirement that the defamatory publication be for the benefit of the general welfare of society. The plaintiff in that case was a visitor at a Greek club who was playing cards in a room containing between 50 and 60 people, both members and non-members. There was a dispute between the players and the defendant said to the plaintiff in a loud voice audible to other persons in the room “you are a crook”. Latham CJ said (at 112):

“I am not prepared to hold that it is conducive to social welfare to lay down a rule that a member of a club who is doubtful of the honesty, or is satisfied of the dishonesty, of another person who is in the club on a particular occasion is privileged in expressing his opinion to members of the club in general. To hold the contrary would amount to granting a wide licence to officious and interfering mischief-makers. I agree with the opinion of Jordan CJ in this matter.”

Starke J (at 114), in effect, agreed, as did McTiernan J and Williams J (at 126). Dixon J dissented. His Honour’s dissent did not turn upon his view (expressed at 122) that:

“The truth of the situation was that the defendant’s purpose was not primarily to communicate information to bystanders but to demand from the plaintiff a justification for what he had done and perhaps to expose him. The test of privilege that is in point is that the defendant’s interest or social duty in impugning then and there the plaintiff’s play on the footing of what he has witnessed and on the other side the plaintiff’s interest therein, which can hardly be doubted.”

16 The next criterion to which I wish to refer is the requirement that “the occasion must not be used for some purpose or motive foreign to the duty or interest that protects the making of the statement”: Roberts v Bass per Gaudron, McHugh and Gummow JJ (at [62], 26).

17 There are older cases that illustrate this proposition in stark terms. Andreyevich v Kosovich concerned the publication of defamatory matter in a newspaper published in the Croatian language in Sydney. The circulation of the newspaper was not large and it was in the main sent by post to subscribers who could read the Croatian language, almost exclusively to Yugoslavs. An edition of the newspaper commented on the conduct of rival bands of guerrillas in Yugoslavia during the Second World War. The newspaper mentioned the plaintiff and three others by name in highly derogatory terms such as fascists, “cursers” and “destroyers”. Jordan CJ accepted (at 364) that, as the article was published at a time “when the allies were at war with Germany, and guerrilla forces in Yugoslavia were rendering good service to the allied cause”, the course of events in Yugoslavia “was therefore a matter which every citizen of every allied country might well regard as one of great interest, and it would naturally be one of specially keen interest to persons of Yugoslav derivation in allied countries.” The Chief Justice (with whom Davidson J and Street J agreed) said (at 364-365) that nevertheless,

“I cannot see that it was expedient, for the common convenience and welfare of the people of New South Wales, in the conditions then existing, that Yugoslavs who had made this State their home should be privileged to abuse one another with impunity because they disagreed on the upon the [relative merits of two antagonistic guerrilla leaders operating in Yugoslavia], and that one group or the other should be entitled to publish its calumnies broadcast amongst Yugoslavs resident there. So long as the contestants were content to express themselves in general terms no question of defamation arose; but when the defendants in their newspaper article condescended to attack particular individuals they became in my opinion subject to the general law of defamation, outside the pale of privilege.”

The Full Court held that the defendants did not have a requisite “interest” that attracted qualified privilege at common law.

18 Moffitt P, Hope JA and Reynolds JA in Morosi v Mirror Newspapers (at 788-789) adopted Jordan CJ’s remarks. Their Honours there discussed O’Sullivan v Schubert [1963] VR 143. The latter case concerned defamatory statements of the plaintiff concerning government aid for church schools (the plaintiff being a Roman Catholic priest who had addressed a public meeting on this issue). The defamatory matter was contained in a letter published in a newspaper. Dean J (of the Supreme Court of Victoria) concluded that the question of government aid to church schools was a matter of public interest and controversy and it was in accordance with “the common convenience and welfare of society” that members of the public who had views or information upon the matter should be free to communicate them to the newspaper. Hence, his Honour held, the occasion of publication was privileged. Moffitt P, Hope JA and Reynolds JA disagreed with Dean J. Their Honours said (at 789):

“No doubt the question of government aid to church schools was a matter of public interest and controversy but that circumstance did not resolve the issue of privilege. To paraphrase what Jordan CJ said in Andreyevichv Kosovich at 365, the correct position would seem to be that, so long as the contestants were content to express themselves in general terms, no question of defamation arose, but, when one of the contestants, in a letter to a newspaper, condescended to attack the plaintiff publicly she became subject to the general law of defamation, outside the pale of privilege. The defendant was entitled to discuss the issue of State aid for church schools in general terms as much as she wished, but in discussing that issue there was, so far as concerns common law qualified privilege, no relevant duty or interest in her, or in any newspaper to publish material, including defamatory statements of a person who held and had expressed a contrary view.”

19 Closely allied to the requirement that the occasion must not be used for a purpose foreign to the interest that protects the making of the statement, is the requirement that there be a significant connection between the defamatory material and the privileged occasion: Bashford at [191]-[196], (434-436); Aktas v Westpac Banking Corporation Ltd [2009] NSWCA 9 at [73] per McClellan CJ at CL.

20 An interest that gives rise to common law qualified privilege must not be remote or tenuous. It must be “real and direct”: Telegraph Newspaper Company Limited v Bedford (1934) 50 CLR 632 at 662 per Evatt J. McHugh J in Bashford (at [71]) observed:

“The interest must be a social, moral or economic interest that is sufficiently tangible for the public interest to require its protection (cf Howe and McColough v Lees (at 377)).”

21 Whether the defendant volunteered the defamatory material, or published it in response to a situation that reasonably called for a response, is a relevant factor. In Bashford (at [73], 393) McHugh J said:

“Ordinarily the occasion for making a volunteered statement would be privileged only where there is a pressing need to protect the interests of the defendant or a third party or where the defendant has a duty to make the statement to the recipient.”

His Honour proceeded (at [77]):

“[W]here neither life is in immediate danger nor harm to the person or injury to property imminent, the fact that the defendant has volunteered defamatory matter is likely to be decisive against a finding of qualified privilege.”

22 Then, there is the question of the size and nature of the audience. In Lang v Willis [1934] HCA 51; (1934) 52 CLR 637 Dixon J said (at 667):

“The proposition appears to me to be untenable that election speeches made to a large audience of unidentified persons are privileged because the speaker deals with matters in which the electors have an interest.”

23 After referring to Lang v Willis, the High Court in Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 said (at 572):

“[A]part from a few exceptional cases, the common law categories of qualified privilege protect only occasions where defamatory matter is published to a limited number of recipients. If a publication is made to a large audience, a claim of qualified privilege at common law is rejected unless, exceptionally, the members of the audience all have an interest in knowing the truth.”

24 The High Court, in Lange, extended, to a degree, the doctrine of common law privilege to provide a wider freedom for members of the public to give and to receive information concerning government and political matters which the common convenience and welfare of society now requires. I shall return to the Lange extension later in these reasons.

25 The following propositions may be extracted from the authorities to which I have referred (that is, without regard to the extended qualified privilege recognised in Lange):

(a) The test for common law qualified privilege is usually expressed at a very high level of generality and abstraction;
(b) In practice, however, the close scrutiny required of all the circumstances of each case results in common law qualified privilege having a relatively limited or narrow practical application;
(c) The scrutiny required depends on the facts of each case and there is no closed set of criteria that must be applied or considered, and;
(d) Guidelines have been established that assist in the scrutiny that is required. These include:
(i) As a matter of public policy, it must be in the general interest of the whole community that the type of material in question be published, notwithstanding that it is defamatory of a third party;
(ii) The occasion must not be used for some purpose or motive foreign to the interest that protects the making of the statement. Further, there must be a significant connection between the defamatory material and the privileged occasion;
(iii) The interest that gives rise to qualified privilege must be real and direct;
(iv) Ordinarily, a volunteered statement is privileged only where there is a pressing need to protect the interests of the defendant or a third party, or where the defendant has a duty to make the statement;
(v) If a publication is made to a large audience, a claim of qualified privilege at common law will fail unless the members of the audience all have an interest in knowing the truth, and;
(vi) The interest should not give officious and interfering persons a wide licence to defame.

The particular circumstances to be scrutinised

26 Mr Cohen published the first matter complained of on 7 April 2001 at a public meeting at the Suffolk Park Hall. He published the second matter complained of on 19 May 2001 at a public meeting at the same place.

27 Harrison J said that the precise number of those attending the two meetings “remains in some doubt”. He did not make any finding in regard to the numbers. There was unchallenged evidence, however, on this issue. Mr Iskov, a private investigator retained by Mr Bennette, recorded Mr Cohen’s speech at the first meeting on 7 April 2001. He testified that, about half an hour to 15 minutes before the speeches began, “over 100” persons were present. He was not cross examined on this evidence. Mr Bartlett, also a private investigator retained by Mr Bennette, recorded Mr Cohen’s speech at the second meeting on 19 May 2001. Mr Bartlett testified that, about an hour before the speeches began (as the hall was filling up), probably 80 to 100 people were present. He, too, was not cross examined on this evidence.

28 The two meetings were public meetings (that is, they were advertised as being and were open to the public at large). They were advertised as being “to support local resident Bill Mackay’s defence of defamation action undertaken by developer Jerry Bennette.”

29 The defamation proceedings, the subject of the two meetings, concerned criticism made of Mr Bennette by Mr Mackay against a background of bitter, personal, and ongoing disputes in the local community concerning developments by Mr Bennette of his eight hectare property at Suffolk Park and the personal behaviour of Mr Bennette and other individuals. These are more fully described in the reasons of Tobias JA.

30 The disputes in question did not concern broad issues of national environmental policy but were of a local nature.

31 The matters complained of in the defamation proceedings brought by Mr Bennette against Mr Mackay were contained in two letters Mr Mackay wrote to a local newspaper. The newspaper was published in the local community. The first letter concerned an environmental award that Mr Mackay contended should not have been made to Mr Bennette. The second letter asserted that Mr Bennette had acted illegally in dumping fill on a site that was once a natural wetland, asked rhetorically whether Mr Bennettte had cynically attempted to avoid public scrutiny, and suggested that the works had been timed to coincide with a certain hearing in the Land and Environment Court.

The jury’s findings and the findings of the trial judge

32 The jury found, relevantly, that at both meetings Mr Cohen published the following defamatory imputations, (a) Mr Bennette is a thug; (b) Mr Bennette is a bully.

33 The trial judge upheld Mr Cohen’s defence of common law qualified privilege.

34 His Honour regarded “the occasions” which he found to be privileged at common law as being the two meetings on 7 April 2001 and 19 May 2001 at the Suffolk Park Hall.

35 The judge said (at para 226):

“In my opinion the limited evidence about the make up of the people who attended the meeting is sufficient to support a finding that the audience would have consisted almost exclusively, if not entirely, of interested residents of the Suffolk Park neighbourhood, whose individual and collective interest in attending the meetings was to support Mr Mackay.”

36 His Honour found (at para 232):

“[Mr Cohen] argued that he had a social (and perhaps even a moral) interest to make his communications and that the audience had a corresponding interest to receive them.”

37 The judge observed that the nature of the occasion was to raise funds for Mr Mackay. He said (at para 233) “The meetings were transparently fund raisers, or rallies”

38 His Honour found (at para 233):

“The reciprocity of social (or moral) interest of [Mr Cohen] and the audience was the raising of funds to cover Mr Mackay’s legal costs and, upon the basis of [a] portion of [Mr Cohen’s] first speech, arguably also the raising of funds to go towards helping to meet any verdict that [Mr Bennette] may have recovered against him.”

39 And said (at para 234):

“If it is contrary to public policy and the general interest of society that persons should be hampered in the exercise of their rights by constant fear of actions for slander, then, in my opinion, the occasions on which the defendant spoke were privileged occasions. The rallying point around which support for Mr Mackay was to be focused was the litigation commenced by the plaintiff against him. … [I]t is clear that litigation is often unpleasant and frightening for most of those involved. [Mr Bennette] and Mr Mackay, were locked in battle. The consequences for Mr Mackay were potentially ruinous. [Mr Cohen] chose those occasions as an opportunity to give a description of Mr Mackay’s opponent. [Mr Cohen] in saying it and the audience had an interest in hearing it. It was the same interest.”

40 His Honour went on to observe (at para 235):

“The significant subject matter of the meetings was a comparison of the relative protagonists in the litigation. The reciprocal interest of [Mr Cohen] as the speaker and the audience as the listeners, was the elaboration of such matters. Each of the meetings was an appropriate occasion to do so, and, in my opinion, they were occasions to which the relevant privilege attached.”

41 In summary form, Harrison J’s reasoning in finding that the occasions upon which Mr Cohen spoke were privileged was as follows:

(a) Mr Cohen and the audience had reciprocal interests in the raising of funds to cover Mr Mackay’s legal costs (and arguably also the raising of funds to help him to meet any verdict against him) in Mr Bennette’s defamation case against him. In this context, his Honour remarked that litigation is often unpleasant and frightening and the consequences for Mr Mackay were potentially ruinous.

(b) The significant subject matter of the meetings was a comparison of the relative merits of the protagonists in the litigation. Mr Cohen had an interest in giving a description of Mr Mackay’s opponent (Mr Bennette) to the audience and the audience had an interest in hearing it, and;

(c) The proposition that it is “contrary to public policy and the general interest of society that persons should be hampered in the exercise of their rights by constant fear of actions for slander” supported the argument that the occasions upon which Mr Cohen spoke were privileged occasions.

The respondent’s submissions on appeal as to qualified privilege

42 In his submissions on appeal, Mr Evatt, who together with Mr Rasmussen and Ms Rawlings appeared for Mr Cohen, supported his Honour’s reasons.

43 Mr Evatt submitted that the interests of Mr Cohen were “to raise funds for Mr Mackay.” He said:

“What we say is that Mr Cohen’s interest was to raise funds for Mr Mackay to comment on the defamation action brought by Mr Bennette who was described as a developer, to comment on his developments in that small community of Suffolk Park and I think that’s about it. In other words to raise funds for Mr Mackay so that Mr Mackay can meet and defend the defamation action brought against him by Mr Bennette, the defamation action being founded on a letter written by Mr Mackay criticising Mr Bennette for his developments.”

44 When pressed to explain what interests he submitted Mr Cohen had in the raising of the funds for Mr Mackay, Mr Evatt replied:

“Well to see that justice is done your Honour. To promote free speech. He’s a Green Member of Parliament. He’s entitled to ensure that there’s free speech, that people are entitled to criticise Mr Bennette’s developments to ensure that if people such as Mr Mackay are sued subject to defamation actions, that they’re able to obtain legal representation.”

45 Later in his submissions, Mr Evatt said that Mr Cohen had “an interest in litigation in public courts and the purposes of that litigation.” He expanded on this by saying:

“We have to look at what interest Mr Cohen had in speaking. It was promotion of freedom of speech, it was to ensure that persons the subject of litigation had proper representation and funds to fight the matter …. The developments of the appellant which were criticised by Mr Cohen and which were known to the Suffolk Park community were also matters of interest. They’re the interest.”

46 Relevantly, in closing address at trial, Mr Evatt (who then with Ms Rawlings also appeared for Mr Cohen) abandoned what he described as “extended category of common law qualified privilege, constitutional defence”. The quoted words were a reference to the following particulars to Part C of Mr Cohen’s defence, the heading of which was “Extended Category of Common Law Qualified Privilege (Constitutional Defence)”. In the defence, under those words, the following appeared:

“(a) The matter disseminated by [Mr Cohen] was received by other members of Australian community all of whom had an interest in disseminating and receiving information, opinions and argument concerning government and political matters.
(b) Each of the following was a government and/or political matter the subject of and/or discussed in the matter of:-
A. the protection of the environment.
B. proceedings in public courts.
C. apprehended violence orders.
D. the Department of Land and Water Conservation.
E. the Government of New South Wales at Sydney.
F. the procedures and conduct of the Mayor and the Councillors of the Byron Shire Council.
G. procedures relating to developers and development applications by the Byron Shire Council and Councillors.
H. meetings of the Byron Shire Council.”

47 In the course of his argument it was put to Mr Evatt by the Court that the interest of Mr Cohen in the raising of funds, according to Mr Evatt’s argument was “the broad concept of promotion of free speech and … justice.” Mr Evatt replied, “It was never abandoned.” I understand this reply to involve a submission that Mr Cohen, when making the abandonment referred to in the previous paragraph, did not intend to abandon reliance on a reciprocal interest in the promotion of free speech and justice.

Summary of the reciprocal interests of Mr Cohen and the audiences as found, and as submitted on Mr Cohen’s behalf

48 On analysis of his reasons, it appears that the trial judge found that the relevant interests of Mr Cohen and his audience were as follows:

(a) Raising funds to cover the legal costs (and verdict) of Mr Mackay in the defamation action that Mr Bennette (a developer) was bringing against him, and;
(b) Comparing the personalities and characters of the two protagonists in the litigation so as to facilitate the raising of funds for Mr Mackay to defend Mr Bennette’s action against him.

49 His Honour’s findings as to the respective interests that existed must be seen in the context of the fact that Mr Bennette’s action concerned Mr Mackay’s criticism of the steps Mr Bennette had allegedly taken to promote his development.

50 Mr Evatt, in effect, submitted that the relevant interests of Mr Cohen and his audience were as follows:

(a) Raising funds to enable Mr Mackay to resist the defamation action brought by Mr Bennette (that is, the same interest as that referred to in sub-para (a) of the previous paragraph), and;
(b) Enabling persons like Mr Mackay, a pro-environment person, to act without the fear of defamation actions in criticising developments by Mr Bennette “in that small community of Suffolk Park”; to see that justice is done and to promote free speech. I shall refer to this interest as “the freedom of speech interest”.

Some preliminary issues

51 No question of “duty” is involved in this appeal. The issue is whether Mr Cohen had an “interest” (capable of constituting an interest that made the relevant occasion privileged) in publishing the matter complained of, and whether the respective audiences at the two meetings had a reciprocal interest to be told of the matters complained of.

52 The abandonment by Mr Cohen at trial of the “extended category of common law qualified privilege, constitutional defence” was an abandonment of all the matters pleaded under that heading in the defence. Those matters relevantly included reliance on any interest that Mr Cohen and members of the audiences might have had in “government and political matters”. As the defence makes plain, “government and political matters” include “the protection of the environment”, “proceedings in public courts”, “procedures and conduct of the mayor and the councillors of the Byron Shire Council”, and “procedures relating to developers and development applications by the Byron Shire Council and councillors”.

53 Next, I refer to his Honour’s observation (at [234]) that “it is contrary to public policy and the general interest of business and society that persons should be hampered in the discharge of their duties or the exercise of their rights by constant fear of actions for slander”. As Mr Evatt pointed out, these words are derived from the judgment of Lord Sands in Dunnet v Nelson (1926) SC 764 (at 769), quoted in Patrick Milmo QC and W V H Rogers (eds), Gatley On Libel and Slander, 10th ed (2004) Sweet and Maxwell at 14.4 [383].

54 Lord Sands’ observation is made at what may be described as the highest possible level of generality. It must be understood in that light. The express statement that only those persons who are discharging “their duties” and exercising “their rights” are not to be “hampered” by “constant fear of actions for slander” is not dissimilar to the requirement that, for a defamatory statement to be governed by qualified privilege, the publisher must have a requisite interest in making the statement. To the extent that Lord Sands’ observation omits any reference to a reciprocal interest on the part of the recipient of the defamatory statement, that observation does not reflect the law of Australia. Any reliance on Lord Sands’ observation would be misplaced. Further, if there is any hint in his Lordship’s observation that qualified privilege at common law arises other than in accordance with the well-established principles to which I have referred, including the need to scrutinise closely the particular circumstances of each case against the general criteria that I have mentioned, it would be wrong to adopt it as part of any exercise in judicial reasoning, at least in this country.

The interests as found and as submitted

55 I turn firstly to the proposition that Mr Cohen and the audiences had a reciprocal interest in raising funds to cover Mr Mackay’s legal costs (and arguably the raising of funds to go towards helping to meet any verdict that Mr Mackay may have recovered against him). I would reject this proposition on several grounds.

56 Firstly, the defamation action brought by Mr Bennette against Mr Mackay involves a dispute between two private individuals (that is, persons who were not public figures) about a private property development having purely local significance. How then is the welfare of society and the public interest advanced by Mr Cohen publishing material containing defamatory material such as that which is the subject of this appeal?

57 I accept that telling the audiences that Mr Bennette was a thug and a bully was capable of persuading some present to pay money for Mr Mackay’s defence. Persons might be prepared to contribute financially to Mr Mackay’s cause if they knew that the plaintiff in the proceedings against him was a thug and a bully. The argument that, for this reason, publication of the matters complained was for the general welfare of society and in the general interest of the whole community, must depend on the proposition that the general welfare of society and the general interest of the whole community would be advanced if persons were prepared to give money to assist Mr Mackay’s costs in meeting Mr Bennette’s claim.

58 In my opinion, the latter proposition cannot be sustained. Issues such as Mr Mackay’s success or failure in the litigation involving local issues limited substantially to the Byron Bay area, have no bearing on the general welfare of society and the general interest of the whole community of New South Wales.

59 Secondly, the interest that it is said that Mr Cohen and the audiences had in the issues involved in the litigation involving Mr Mackay and Mr Bennette were, in my opinion, too indirect, too remote, too vague, and too tenuous to be regarded as an interest that, in the circumstances, could give rise to common law qualified privilege that would protect Mr Cohen against a defamation claim resulting from him calling Mr Bennette a thug and a bully.

60 Mr Cohen had no involvement, direct or even indirect in the litigation between Mr Mackay and Mr Bennette. Nevertheless, he volunteered the defamatory statements in question.

61 There was no relation of principal and agent between Mr Cohen and Mr Mackay, nor any other business relationship or connection. There was no suggestion that a relationship of trust or confidence or even intimacy existed between them. While Mr Cohen was a member of the Greens party, there was no evidence as to Mr Mackay’s political affiliations. In any event, in my view, even if Mr Mackay was a member of the Greens party, that would not result in a sufficiently real and direct interest in Mr Cohen so as to give rise to qualified privilege.

62 True it is, Mr Cohen was a Greens party member of Parliament, and the matter complained of in Mr Bennette’s action against Mr Mackay concerned property development that was said in some way to affect the environment in the area of Suffolk Park or even Byron Bay. But, the issues in the litigation involved localised concerns and, in substance, were personal to the litigating parties. Issues of this kind were not matters of general public interest to the entire community of New South Wales. They were not the kind of issues that would reasonably be of interest to the Federal or State Parliaments or to politically aware persons, generally. The loss or success of the plaintiff or defendant in those proceedings would have virtually no impact on the life of the average resident of this State.

63 Of course, Mr Bennette’s recourse to an action for defamation once Mr Mackay had criticised him in the local newspaper tended to inhibit any further defamation of Mr Bennette. But Mr Bennette was entitled to have recourse to the law. That was his right as a citizen of this country. It is undoubtedly so that having a potential liability to pay damages for defamation inhibits freedom of speech. But our society has long recognised and valued the protection that the law of defamation provides to reputation. Defamation litigation is a fact of Australian life. The existence of pending defamation proceedings does not allow supporters of defendants in such proceedings, who hold public meetings to raise funds for those defendants, to proceed at such meetings to insult the plaintiffs involved by publishing, gratuitously, defamatory allegations about them. There is no interest known to the law that protects persons who publish defamatory remarks in these circumstances. They are regarded in law simply as officious busybodies.

64 Thirdly, even if Mr Cohen had an interest in raising funds for Mr Mackay’s defence, his statements that Mr Bennette was a thug and a bully were foreign to that interest. Put in another way, there was no connection between the defamatory material and the occasions in question. To paraphrase what Jordan CJ said in Andreyevichv Kosovich (at 365), it may be arguable that, so long as Mr Cohen was content to express himself in general terms in criticising Mr Bennette’s conduct in regard to his developments and in supporting Mr Mackay, no question of defamation arose. But, when Mr Cohen condescended to attack Mr Bennette publicly and personally, he became subject to the general law of defamation, outside the pale of privilege.

65 Fourthly, this is a case where defamatory matter was published in a public meeting to a relatively large audience. The trial judge attempted to meet this problem by inferring that those who attended the meetings “were on the whole sympathetic to Mr Mackay’s plight”. His Honour referred in this regard to the audiotapes of the meetings and the advertising pamphlets inviting persons “to support local resident Bill Mackay’s defence of defamation action undertaken by developer Jerry Bennette”.

66 I do not accept, however, that one can draw a reliable inference from comments made by unknown persons recorded on audiotape. It is likely that there were vociferous persons present who supported Mr Mackay. That says nothing about opponents of Mr Mackay who were intent on watching, listening and remaining silent. His Honour considered that it was “highly unlikely” that “anyone other than a detractor [of Mr Bennette] would have attended either of the meetings if there was any chance that, in doing so, they would be giving support to [Mr Bennette’s opponent]”. In my view, this inference does not follow. It may well be that persons other than “detractors” of Mr Bennette might have attended either of the meetings. Persons who did not feel strongly either way might have attended the meetings for the purposes of informing themselves. The dispute must have excited the curiosity of some people in Suffolk Park and Byron Bay. Supporters of Mr Bennette might have attended the meetings simply to listen to and observe his opponents and, perhaps, report back. The point is that there appear to have been at least 100 persons present at each public meeting and the likelihood that everyone would have had an interest in supporting Mr Mackay is not a probable inference. I do not accept that all the members of the audiences had identical interests in being there, and in hearing the matters complained of.

67 Mr Evatt submitted that, in the light of his Honour’s findings as to the size of the audience, publication to the general public had not taken place. Hence, he argued that the trial judge had rightly held that the matters complained of were published on privileged occasions (see Bashford (at [26]). This submission depends, of course, on the proposition that the interests asserted on Mr Cohen’s behalf were interests capable of supporting common law qualified privilege, and I have held to the contrary. In any event, in my opinion, the evidence did not rebut the prima facie inference that arises from the size of the audiences, the fact that the meetings were open to the public and that members of the general public were invited to attend. In my opinion, the audiences at the two meetings in question should be regarded simply as being comprised of members of the general public.

68 Mr Evatt submitted that Mr Cohen and the audiences had reciprocal interests based on broad political concepts such as free speech and protection of the environment in general. Undoubtedly, these notions are capable of forming part of circumstances giving rise to privileged occasions, but that would occur only within the recognised precepts of our law of defamation. For the reasons I have given, Mr Cohen did not publish the matters complained of in this case pursuant to such interests and the interest of the audience in hearing the matter complained of was far removed from these notions.

69 I would add that the only ground upon which Mr Cohen could arguably assert an interest based on broad political concepts such as free speech and protection of the environment (and I have attempted to explain why an interest in such terms does not arise in this case) is on the Lange extended privilege basis. I have noted that Mr Cohen expressly abandoned any argument so based.

70 Turning to his Honour’s second basis for finding that the requisite reciprocity of interests existed, I do not agree that the significant subject matter of the meetings was “a comparison of the relative protagonists in the litigation”. In my opinion, the significant subject matter was the raising of funds for Mr Mackay.

71 According to Mr Evatt, Mr Cohen’s interest was to assist Mr Mackay in defending the defamation action so that others would not be deterred from exercising their rights to free speech by criticising Mr Bennette for the developments he had undertaken and in which he was involved. This, according to Mr Evatt, was an interest in justice. I have above explained why I would not accept this submission. In any event, in my view, the personality traits and character of Mr Bennette are irrelevant to such an interest. Publishing a statement that Mr Bennette is a thug and a bully does not advance the cause of free speech, the environment or justice. In my opinion, Mr Cohen and his audience had no interest (other than in the sense of interest as mere curiosity) in a comparison of the personality traits of Mr Bennette and Mr Mackay.

Conclusion

72 In my view Mr Bennette’s arguments as to common law qualified privilege succeed.

73 I repeat that I agree with the orders proposed by Tobias JA.

74 TOBIAS JA: The appellant (the plaintiff below) is a local developer of land owned by him at Suffolk Park on the north coast of New South Wales, just south of Byron Bay. The respondent (the defendant below) is a prominent member of the Greens Party and a member of the New South Wales Legislative Council. The appellant commenced proceedings in December 2001 alleging that the respondent had defamed him at meetings held at the Suffolk Park Community Hall on 7 April 2001 and 19 May 2001.

75 At the first meeting held on 7 April 2001 the respondent said the words attributed to him in Schedule A to the judgment of Harrison J (the first matter complained of). At the second meeting held on 19 May 2001 the respondent said the words attributed to him in Schedule B to that judgment (the second matter complained of). On each occasion the respondent was addressing a fundraising meeting or benefit concert that had been organised by supporters of Mr Bill Mackay, a local environmental activist, in order to raise funds for his defence of defamation proceedings which had been commenced against him by the appellant in the District Court on 7 June 2000.

76 A trial pursuant to s 7A of the Defamation Act 1974 (the Act) took place before Hulme J and a jury in August 2004. The jury found that the appellant had established that the first matter complained of conveyed the following defamatory imputations:

(a) The plaintiff is a thug.

(b) The plaintiff is a bully.

(c) The plaintiff has improperly manipulated the system by bringing defamation proceedings just for the purpose of stifling public protest.

77 The jury also found that the appellant had established that the second matter complained of conveyed the following defamatory imputations:

(a) The plaintiff is a thug.

(b) The plaintiff is a bully.

78 The matter came before Harrison J on 14 May 2007 for consideration of the defences raised by the respondent and, if appropriate, for the assessment of damages. The hearing proceeded for a total of 15 days, concluding on 1 June 2007.

79 The respondent pleaded a number of defences both at common law and under the Act. According to the primary judge (at [95]), only the following were relied upon at the hearing:

“(i) That the imputations were a matter of substantial truth and either related to a matter of public interest and/or were published under qualified privilege: s 15.
(ii) That the imputations related to a matter of public interest or were published under qualified privilege, that one or more imputations contextual to the imputations complained of related to a matter of public interest or were published under qualified privilege and were matters of substantial truth, and by reason that those contextual imputations were matters of substantial truth, the imputations complained of did not further injure the reputation of the [appellant]: s 16.
(iii) That the imputations were published under common law qualified privilege.
(iv) That any matter published by the [respondent] amounted to comment of the [respondent]: s 32.
(v) That the circumstances of the publication of the matters complained of were such that the [respondent] was not likely to suffer harm: s 13.”

80 In reply to the defence of common law qualified privilege, the appellant pleaded that the respondent was actuated by malice in making the statements attributed to him in each of the matters complained of.

81 On 10 July 2007 the primary judge upheld the respondent’s defences of common law qualified privilege and comment. He rejected the defences of truth and unlikelihood of harm. He also rejected the appellant’s contention that the defence of common law qualified privilege had been defeated by the respondent’s malice. Notwithstanding that the appellant had therefore failed, his Honour provisionally assessed damages in the sum of $15,000: Bennette v Cohen [2007] NSWSC 739; (2007) Aust Torts Reports 81-897.

82 The appellant sought leave to appeal from his Honour’s decision upholding the defences of common law qualified privilege and comment as well as against his Honour’s failure to find malice. Leave to appeal was also sought with respect to his Honour’s provisional assessment of damages. On 23 June 2008 the Court comprising the President and myself granted leave to appeal except with respect to the issue of damages.

83 Accordingly, the issues on the appeal are:

(a) Did his Honour err in finding that each of the matters complained of were published on an occasion of qualified privilege at common law?

(b) Did his Honour err in upholding the defence of comment?

(c) Did his Honour err in declining to find that the respondent was actuated by malice in making the statements attributed to him in the matters complained of?

The appellant’s land

84 The appellant was born in the United States of America and emigrated to Australia in 1971. He and his wife moved to Byron Bay in 1974. In 1988 he purchased an eight hectare property at Suffolk Park which was a short distance south of Byron Bay (the land). The land and the work performed by the appellant over many years in developing it were central to the issues in the case.

85 The land was zoned Residential 2A. It was situated a short distance from the coast and adjoined other residential subdivisions to the east and south-east. However, it was effectively sandwiched between an existing residential development and what appeared to be virgin bushland to the west and north-west.

86 The appellant lodged a development application with the Byron Shire Council (the Council) in approximately October 1989 with respect to a first stage subdivision of 25 lots. He also proposed an overall development concept for the whole of the land.

87 The land was bisected by a watercourse which, with relevant approvals, the appellant redesigned in an attempt to create a natural watercourse which would attract wildlife and enhance his proposed development.

88 Between 1988 and 1992 the appellant found the Council increasingly difficult to deal with. A stormy relationship developed between the appellant and Council staff with respect to the proposed development of the land. He alleged, and was ultimately vindicated, that Council staff had adopted a deliberate strategy of discriminating against him aimed at causing him severe financial losses. He was frustrated and at times reacted angrily to the treatment he was receiving.

89 Having carried out considerable work redirecting the original watercourse, beautifying it and restoring it to a healthy and natural condition, the appellant dedicated the site of the watercourse to the Council pursuant to a condition of his original development consent.

90 As I have indicated, Stage 1 of the development of the land was a subdivision of 25 residential lots. This covered about two hectares out of a total of eight hectares. The appellant submitted a second development application in 1991 to fill the land. Thereafter he continued to develop the land, lodging a further application with the Council in May 1996 seeking consent for the construction of 65 townhouses and 12 residential lots (the May 1996 application).

91 Although the Council staff recommended approval of an amended application for the construction of the townhouses lodged in October 1996, in June 1997 the Council formally refused the application. The appellant appealed to the Land and Environment Court, ultimately withdrawing that appeal and lodging a fresh development application in December 1999, reducing the number of townhouses from 65 to 40. The Council again refused the application but an appeal by the appellant to the Land and Environment Court was upheld on 26 April 2001. In accordance with the consent granted by the Court, the development subsequently proceeded and was completed.

The Bradbury incident

92 On 4 June 1996 the May 1996 application came before the Council for consideration. A Mr David Bradbury was given permission to film the Council proceedings. An incident occurred involving Mr Bradbury, Councillor Tucker, the appellant and his wife. An altercation ensued when Councillor Tucker attempted to move Mr Bradbury’s camera away from his face. The appellant asserted that Mr Bradbury swung at Councillor Tucker in the course of which he struck the appellant’s wife on the side of the head and she fell to the floor unconscious. The appellant reacted by tackling Mr Bradbury and calling him “a motherfucker”. As a result of the incident the appellant was charged with assault, malicious damage to property and using offensive language. He was convicted of assault in the Local Court, fined $750 and ordered to pay $3,500 compensation, which he did. The respondent was present during the hearing in the Local Court.

93 The appellant appealed to the District Court against his conviction and fine. The Chief Judge, Justice Blanch, heard the appeal and reduced the fine imposed upon the appellant from $750 to $100. In the course of his judgment his Honour found that the appellant was in fact guilty of an assault which lasted over a period of time, and that he was, in fact, responsible for the fracas which had occurred in the Council chamber. His Honour noted that the magistrate dealt with the matter on the basis that he was not certain that the appellant could control his temper. However, his Honour found that there was nothing in the appellant’s antecedents which would lead him to consider that he would commit any further offences and that it was clear that, in the particular circumstances, “there was a degree of provocation so far as Mr Bennette was concerned”.

94 His Honour noted that the appellant had no prior convictions, that he was devoted to his wife which explained the degree of annoyance that he felt on the night in question, that he had been actively involved in the affairs of the local community and that he had acknowledged the wrongfulness of his actions. Notwithstanding these observations, his Honour held that evidence of the appellant’s guilt was “absolutely overwhelming” and he declined to exercise his discretion under the then s 556A of the Crimes Act 1900 and thus confirmed the appellant’s conviction.

95 However, his Honour concluded his judgment by observing:

“I am sure that the assault arose purely out of the fact that he saw his wife suffer and that he lost control of himself as a result.”


The respondent did not attend the hearing before the Chief Judge and there was no evidence that he became aware of his Honour’s remarks which it seems to me, significantly mitigated the appellant’s guilt.

The Rivercare Award

96 The appellant said in evidence that from 1993 to 1998 and beyond he had maintained a creek known as Tallow Creek at no cost to the Council and that he had expended approximately $35,000 of his own money maintaining its eastern side. He later saw a newspaper advertisement asking for people to become accredited for work they were doing on rivers, creeks and streams. The appellant applied for accreditation and the Department of Land and Water Conservation subsequently inspected his work on Tallow Creek.

97 Some months later he received a call and was asked if he would show the creek to the Rivercare Committee members. In about November 1998 the appellant was notified that he was a finalist in the Rivercare Awards for that year. An awards ceremony subsequently took place in Sydney at which the appellant and his family received a Gold Award. News of the award appeared prominently in newspapers circulating in the Byron Bay area.

98 At a meeting of the Council on 8 December 1998, Councillor Tucker moved a motion that the appellant be congratulated on his receipt of the award. A debate followed during which Councillor Tucker spoke in favour of the motion whereas other members of the Council, identified as belonging to the Greens Party, spoke strongly against it. The motion was lost. It became clear that the Council was divided into at least two groups – one of which favoured and one of which opposed the appellant’s development of the land. The appellant showed the Council what he thought of their decision following the meeting by giving a Nazi salute and shouting “Sieg Heil”. However, on the same night he wrote an apology to the Mayor requesting him to table the apology at the next Council meeting. As his Honour observed (at [31]), in the way of things, that controversy spilled over into the present proceedings.

The appellant’s relationship with Mr Mackay

99 The appellant first met Mr William (Bill) Mackay in about 1995 or 1996 when they were both teachers at Alstonville High School. Mr Mackay was a member of the Greens Party. He was also a member of the Suffolk Park Progress Association (the Association) which was consistently opposed to any development of the land and which was closely and sympathetically associated with the Greens councillors on the Council. Mr Mackay was present at the Council meeting on 8 December 1998 and also at the hearing before the magistrate in the Local Court concerning the appellant’s charges in relation to the Bradbury incident.

100 On 15 December 1998 Mr Mackay published a letter in the Byron Shire Echo (the Echo) which was critical of the receipt by the appellant and his wife of the Rivercare 2000 Gold Award for the “restoration” of Tallow Creek.

101 On 18 December 1998 the appellant’s then solicitors wrote to Mr Mackay alleging that his letter was defamatory of the appellant. They requested that he withdraw his statements and print an apology failing which they had instructions to consider commencing defamation proceedings against him.

102 The appellant maintained that the letter was “complete lies”. The primary judge was satisfied (at [36]) on the basis of the evidence called by the appellant with respect to this issue that the letter was erroneous in a number of respects.

103 Mr Mackay wrote another letter to the Echo that was published on 18 January 2000. This letter stated, amongst other things, the following:

“Despite having no approval to build, last week truckloads of fill were dumped a site that once was a natural wetland. Thumbing his nose at Council officers, he [the appellant] continued bulldozing disregarding a stop work notice. …
The developer has shown his disregard for the public interest. His most recent DA was unveiled just before Christmas and incorrectly advertised. Was this a cynical attempt to avoid public scrutiny?
Residents are also wondering if the recent works are timed to coincide with a hearing in the Land and Environment Court to be held in Byron Bay later this month. The Bennettes are attempting to get approval to build 65 units on the same site.”

The last paragraph of the letter appears to be in error as the number of townhouses had been reduced from 65 to 40: see [91] above.

104 The appellant gave instructions to his solicitor after this letter had been published to commence defamation proceedings against Mr Mackay. The proceedings were in fact commenced on 7 June 2000 and alleged that Mr Mackay had defamed the appellant in each of the letters of 15 December 1998 and 18 January 2000. The Ordinary Statement of Claim was later amended to rely only on the letter of 18 January. It contained the standard endorsement that “The plaintiff claims $750,000 in respect of the cause of action pleaded overleaf”.

105 Those proceedings were ultimately resolved some time after the publication of the matters complained of in the present proceedings. Mr Mackay consented to a verdict against him for $20,000, agreed to donate $1000 to a nominated charity, undertook not to make public statements about the appellant and promised to publish an apology in three local newspapers.

106 The respondent relied upon what he described as the draconian terms of the settlement of those proceedings as part of his defence of the appellant’s claim. However his Honour considered (at [38]) that the terms of Mr Mackay’s apology were instructive in that, amongst other things, he acknowledged that he had made several errors of fact in the letter. Furthermore, although a term was included which went beyond what was necessary or sufficient to protect the appellant from further defamation by Mr Mackay, his Honour noted (at [206]) that Mr Mackay was represented by competent legal counsel who negotiated the settlement on his behalf and who presumably advised him of the wisdom of agreeing to its terms.

107 The foregoing events and proceedings provide the direct factual background to the issues on appeal. However, the following relevant events also occurred during this period. On or about 30 January 1999, the appellant, his wife and two others published a letter to the Editor of The Saturday Star being a free publication published throughout Byron Shire on a weekly basis. It would not appear that that letter was in evidence. However, on 2 April 2001 (five days before the first meeting which forms the first matter complained of in the present proceedings) Mr Mackay commenced defamation proceedings in the District Court against the persons who wrote the letter (including the appellant and his wife) alleging that in its natural and ordinary meaning it conveyed a number of imputations defamatory of Mr Mackay including that he was prone to lying, that he intentionally disseminated false information and that he was suspected upon reasonable grounds of having been involved in corrupt activity. His Ordinary Statement of Claim contained the standard endorsement that “[t]he Plaintiff claims $750,000 in respect of the cause of action pleaded overleaf”. Mr Mackay also sought aggravated damages upon the basis that the defendants were aware of the falsity of the imputations conveyed by the matter complained of. These proceedings were never litigated and were struck out by the District court on the appellant’s application in or about 2005. An appeal by Mr Mackay to this Court was dismissed.

The Council Stop Work Notice

108 Since approximately September 1999 the appellant had been busily engaged in extensive filling works on the land in accordance with consents previously granted by the Council. Those works continued during December 1999 and January 2000. On 6 January 2000 someone from the Council telephoned the appellant’s wife, informing her that the Council wished to inspect the works the following morning.

109 A number of officers attended to inspect the land. Councillor Barham, who was also a member of the Greens Party and a colleague of the respondent, accompanied them. The Councillor asked the appellant if she could enter the land: the appellant refused access. Thereafter Council officers entered the site and carried out an inspection. At some point later in the day the respondent came to the site but the appellant was not present at the time.

110 A further visit by Council officers took place on 7 January 2000. On that day one of the Council’s planning managers, Mr Peter Fryer, attempted to serve on the appellant a document referred to as a “Stop Work Notice” which the appellant refused to accept.

111 On 8 January 2000, the respondent again visited the appellant’s land. Between 7 and 18 January, following receipt of legal advice, the appellant ignored the Stop Work Notice and continued to carry out filling works on the land.

112 On 16 January 2000 the Association held an Extraordinary Meeting at which the respondent and Councillor Barham were present. Two days later, on 18 January 2000 the Council commenced Class 4 proceedings in the Land and Environment Court against the appellant seeking an injunction to restrain work on the land which had been carried out in breach of the Stop Work Notice issued on 7 January. Those proceedings came before the Court for hearing on 23 March 2000 when, by consent, they were dismissed and the Council was ordered to pay the appellant’s costs, which were agreed in the sum of $10,000. The Council offered no evidence to the Court in support of its application.

113 There was no doubt that, at that time, the Council had no power to issue the Stop Work Notice and therefore the appellant had no legal obligation to comply with it. This was in accordance with the legal advice that he had received at the time of its service. No doubt that was the reason why the Council consented to the orders made on 23 March 2000. It simply had no case.

Relations worsen between the appellant and the respondent

114 During this period, on 8 January 2000, the appellant saw the respondent enter upon the land. The appellant said to him “Ian, this is private property”. The respondent replied “So what?”. After some further conversation the appellant said that the respondent called him a thug and a mongrel more than once, possibly three or four times, and said “Go back to America you scum”. The appellant said that the respondent was “very agitated and angry” when he said these things. The respondent then said, “I am going to get my lawyers onto you” or words to that effect. The appellant called the police who suggested that he apply for an apprehended violence order (AVO) against the respondent, which he did. He was only cross-examined on his evidence with respect to this conversation to suggest that the respondent had not said “Go back to America, you scum”.

115 On 11 January 2000 the front page of the Echo reported that the AVO proceedings were to be heard on 20 January 2000. Some time thereafter, although the evidence did not disclose precisely when, the respondent issued a media release about those proceedings. It was relevantly in the following terms:

“ Bennette ordered to Pay
As a consequence of the failed Apprehended Violence Order taken out by Jerry Bennette against Ian Cohen MLC Mr Bennette has been directed by the court to pay costs.
‘My defence has been vindicated. It is gratifying to see the court throw out this baseless summons against me. The fact that there is an order for costs is a further indication that this whole exercise has been tainted as a means to attack a public figure somewhat vulnerable as an elected representative.’ Ian Cohen MLC said: ‘It surely raises the question. Was the plaintiff in any way in fear or using the legal system for a political vendetta?’ The Greens MLC asked.
‘While I am pleased the court has awarded costs against Mr Bennette, more importantly this will serve to discourage frivolous exercises taking up valuable time of the court and leave more room for cases which the Apprehended Violence Orders are properly designed for, to protect people in real fear of violence.’ Ian Cohen said.
‘This process has seen both sides engage legal counsel. It is an expense that I am fortunately able to afford. People who stand up for social and environmental causes are often faced with litigation of some description to stop the protest.’
…
‘This is commonly referred to in the United States as a SLAPP suit (Strategic Litigation Against Public Protest) and is often used by the big corporations to silence any public outcry. Faced with the prospect of a long drawn out court process against multinational corporations most in the community would duck for cover and the environment loses.’ Ian Cohen said.”

The state of the litigation between the appellant and Mr Mackay

116 As at the date of the first matter complained of, the state of the litigation between the appellant and Mr Mackay was that the appellant had on 7 June 2000 filed an Ordinary Statement of Claim claiming $750,000 alleging that he had been defamed by a letter Mr Mackay had caused to be published in the Echo on 18 January 2000 whereas on 2 April 2001 Mr Mackay had instituted proceedings by way of Ordinary Statement of Claim, also claiming $750,000, alleging that the appellant had defamed him in a letter published by him in The Saturday Star on 30 January 1999.

The first matter complained of

117 Shortly before 7 April 2001 the appellant learned of a proposal to hold a fundraiser for Mr Mackay scheduled for that date in the Suffolk Park Community Hall. As previously noted, the aim of the meeting was to raise funds for Mr Mackay’s defence of defamation proceedings which had been instituted against him by the appellant. The latter said that he took steps to have his lawyers notify Mr Mackay that he was fearful or concerned that he might be further defamed at that meeting and he requested Mr Mackay to abandon it. On 3 April 2001 the appellant’s solicitors wrote to Mr Mackay’s solicitors in the following terms:

“We refer to the above matter [Bennette v Mackay] and are instructed that your client [Mr Mackay] is publishing via the newspaper and via posters around the Byron Shire, a benefit to be used to raise money for your client’s legal fees in relation to this matter.
We regard these further publications as being defamatory of our client. We are instructed to seek that your client attend to the following immediately:

1. cease all publications;

2. not hold the meeting/benefit.

Should your client continue to so publish and hold the meeting then we put you on notice that we shall be using this letter in the publications in support of an application for aggravated damages.”

150 The respondent’s interest in making the defamatory statements, if they were to attract the privilege, must have been a social or moral interest of his own or of another person whose interest he was entitled to promote or protect. The only such person was Mr Mackay. In argument I put to senior counsel for the appellant and he agreed that the only interest of the respondent which could attract the privilege was one which was a personal matter of moral or social concern to him which he was justified in promoting or protecting on his or Mr Mackay’s behalf.

151 The question to be asked in the present case is, therefore, whether the respondent had some interest of his own or of Mr Mackay’s which he was entitled in the circumstances to protect by describing the appellant as a thug and a bully. Those circumstances include the fact that the respondent’s statements so describing the appellant were volunteered (as was his whole speech) and were made to an audience of approximately 100 unidentified persons at a public meeting which he did not convene and which he had no interest in convening, and that no special or any relevant relationship existed between the respondent and Mr Mackay that entitled or required the former to protect any relevant interest of the latter. Accordingly, my answer to the question so posed is that the respondent had no such interest.

152 Although, as his Honour found (at [234]), the respondent chose the occasions in question as an opportunity to give a (gratuitous) personal description of Mr Mackay’s opponent in the litigation, it does not and cannot follow from that finding alone that the respondent had a duty to make the defamatory statements and his audience had an interest in hearing them.

153 Nor, with respect, can I agree with his Honour’s finding (at [235]) that the subject matter of the meetings was a comparison of the relative personal merits or demerits of the protagonists in the litigation. Such a finding is not consistent with the subject matter of the meetings as found by his Honour at [233] which was for the purpose of raising funds to support Mr Mackay’s defence to the proceedings instituted against him by the appellant. His Honour provided no explanation as to why such a comparison of the litigants was the subject matter of the meeting or as to why the respondent had an interest of his own or Mr Mackay’s which, in the context of the meetings, required promotion or protection by the making of the defamatory statements in question.

154 I interpolate that at one point of the argument on the appeal it was suggested that the meetings were of a political nature, being concerned with the politics of the environment as against development. However, at the hearing the respondent expressly abandoned the case originally pleaded in reliance upon Lange, as the extended category of common law qualified privilege founded on the discussion of a government and/or political matter being, in the present case, the protection of the environment.

155 I have already set out at [127] above the finding of his Honour at [226] to the effect that the audience was made up of persons

“whose individual and collective interest [or reason] in attending the meetings was to support Mr Mackay.”

156 The relevant audience was there to support Mr Mackay’s fundraiser: nothing more and nothing less. The mutual interest of the respondent and the audience, as his Honour noted (at [233]), was the raising of funds to cover Mr Mackay’s legal costs in his defence of the proceedings instituted against him by the appellant.

157 The difficulty faced by the respondent and the error into which, with respect, the primary judge fell, was the suggestion that the subject matter of the meetings was the comparison of the relative merits of the protagonists in the litigation. Even if it was, the respondent had no interest in that litigation, which was solely between Mr Mackay and the appellant. Whatever the outcome of the litigation, it could in no way impact upon the respondent or those in the audience.

158 In the context of a fundraiser, the respondent had no interest in describing the appellant as a thug and a bully and there was, therefore, no occasion for him to do so. Equally, the audience had no interest in receiving those statements.

159 In the present context it is necessary to contrast the first and second imputations conveyed by the first matter complained of, that the appellant was a thug and a bully, with the third imputation, that the appellant improperly manipulated the system by bringing defamation proceedings for the purpose of stifling public protest. The appellant did not challenge the primary judge’s implicit finding that the third imputation was made on an occasion of qualified privilege. Nor was it submitted that that imputation or so much of the matter complained of which conveyed that imputation were actuated by malice. However, it could be argued that if that imputation was one which could be said to have a connection with the purpose and subject matter of the first meeting which was to raise funds to enable Mr Mackay to properly and adequately defend the proceedings in question and/or to assist him in meeting any verdict obtained against him, then there was some inconsistency in the position taken by the appellant with respect to the first and second imputations.

160 In my opinion there would have been some merit in this argument if the respondent had relied upon it. But he did not. In any event, I would not accept that the third imputation attracted the privilege notwithstanding the appellant’s apparent concession that it did.

161 At [130] and [131] above I have set out the respondent’s particulars filed in support of his defence of common law qualified privilege. They are cast widely, to say the least. But their width reveals their inherent weakness when measured against the primary judge’s unchallenged finding as to the subject matter of the two meetings, namely, to raise money to fund Mr Mackay’s defence to the proceedings instituted against him by the appellant.

162 Once that subject matter or purpose of the meetings is identified, the references in the particulars, for example, to a common interest of the respondent and the audience in the affairs and conduct of the appellant as a developer; in replying to the appellant’s demands and attacks; in redressing the grievances and in responding to attacks by the appellant on various members of the community, as constituting the subject matter of the meetings cannot be sustained and, therefore, cannot be called in aid by the respondent to support the necessary reciprocity of interest giving rise to the occasion of privilege which the law requires.

163 For the foregoing reasons, in my opinion his Honour erred in finding that the first and second imputations conveyed by the matters complained of were made on an occasion of qualified privilege in that the respondent had a legitimate interest to protect in making those statements and the audience to whom the statements were made had a reciprocal interest in receiving them.

164 The second issue concerns the proposition that before an occasion on which a defamatory imputation is published is protected by qualified privilege, there must be a significant connection between the imputation and the privileged occasion. The principles relating to this issue were also articulated by McColl JA in Lindholdt at [125]–[135] and by McClellan CJ at CL in Aktas at [77]–[78] where his Honour cited extensively from the judgment of Kirby J in Bashford at 434–436 [191]–[196]. At 435 [193] Kirby J noted the criteria of connection applied in this Court by Sheller JA and Hodgson JA respectively in Bashford which asked whether the defamatory imputations were sufficiently “germane and reasonably appropriate” to the publication on the matter of public interest that otherwise attracted the privilege: see [2001] NSWCA 470 at [2] and [44].

165 Kirby J then continued (at 435 [194]):

“All of these formulae are attempts to define the boundaries of a discussion that is truly within the scope of the matter of public interest, so as to exclude the introduction of extraneous, irrelevant or marginal and gratuitous imputations that unacceptably do harm to the reputation and honour of an individual. Scientific precision is impossible by the use of such formulae. In every case, a judgment is evoked. In some instances the titillating character of an irrelevant defamatory imputation in an otherwise justifiable context will be plain. But in other cases, the issue will be more debatable, as Callinan J has correctly recognised (at [237]).”

166 The primary judge did not, with respect, deal specifically with the issue of relevance. At [235] he said that he was not satisfied

“that the [respondent] used the occasion for some purpose or motive foreign to the interest that would otherwise protect the making of his statements.”

However, this finding had more to do with the issue of malice than relevance.

167 In Skalkos v Assaf [2002] NSWCA 14; (2002) Aust Torts Reports 81-644, Mason P observed:

“40. In the seminal case of Adam v Ward , characterisation of matter as extraneous and irrelevant was seen as directly pertinent to the issue whether the communication in question was made upon the privileged occasion. …
41. …
42. The grossness of the falsity of the publication is pertinent to this issue of relevance. … The jury’s rejection of malice did not pre-empt the judge from concluding, in the particular case, that the privileged occasion was abused.”

168 In the same case Giles JA referred (at [129]), with apparent approval, to the President’s discussion of the authorities dealing with common law qualified privilege and continued:

“130. It must be remembered that the inquiry into relevance of the defamatory imputation to the occasion, whether expressed in those terms or in the various other ways to be found in the cases, is intended to distinguish between an imputation which should not bring liability for defamation and one which should. … The inquiry is not a mechanical application of a form of words. Something may be privileged although untrue, irrational or intemperately expressed. But that it is untrue, irrational or intemperately expressed may warrant the conclusion, or contribute to the conclusion that the protection of privilege should not be afforded. Absence of malice does not mean that all that is published is within the occasion of privilege .” (emphasis added)

169 Of some significance in the present context are the following passages from the judgment of Callinan J in Bashford (omitting references to footnotes):

“[235] Everything to which I have referred highlights the importance of identifying, and doing so with some degree of precision, the relevant subject matter. It is equally important to make sure that the inaccurate and defamatory matter in respect of which the defence is advanced is not extraneous to that subject matter and is, to adopt the words of each of Sheller and Hodgson JJA respectively in the Court of Appeal in this case which I am content to do, "sufficiently connected" and "germane and reasonably appropriate" to it. A slight, or general, ill-defined connection will not suffice. …

[236] To a similar effect is the passage in the joint judgment of Dawson, McHugh and Gummow JJ in Bellino v Australian Broadcasting Corporation :
‘It is true that, at common law, privilege only attaches to those defamatory imputations that are relevant to the privileged occasion. Where a potentially privileged communication consists partly of matters relevant to the privilege and partly of matters that are not relevant, qualified privilege only attaches to that part which is relevant to the occasion. Moreover, the inclusion of the irrelevant part in the communication affords evidence of malice and can destroy the privilege attaching to the relevant part.’

[237] Again, what is or is not relevant or germane is not a matter upon which all minds will always agree. But because the communication of inaccurate matter can hardly be in the true interest of anyone, matters of the most attenuated relevance only to the subject matter, need to be carefully scrutinised and should be rejected as being outside the occasion of qualified privilege.”

170 The respondent’s submissions to this Court on the issue of relevance were not expressly distinguished from his submissions on the issue of interest. In this context much was made by the respondent of the contention that he had an interest in promoting freedom of speech with particular reference to ensuring persons the subject of litigation had proper representation and funding for their defence. It was submitted that the audience was interested in the fact that the appellant had instituted defamation proceedings against Mr Mackay, had claimed damages in the sum of $750,000 and had sued him personally rather than the newspaper in which the allegedly defamatory letter had been published. The respondent sought to characterise those proceedings as a SLAPP suit notwithstanding that there was no evidence that the appellant had attempted to stifle public debate with respect to his development of the land by instituting any other defamation proceedings against those opposed to his interests. On the contrary, it was Mr Mackay who instituted defamation proceedings against the appellant in April 2001.

171 When pressed, counsel for the respondent made the following submission:

“What we say is that Mr Cohen’s interest was to raise funds for Mr Mackay to comment on the defamation action brought by Mr Bennette who was described as a developer, to comment on his developments in that small community of Suffolk Park and I think that’s about it. In other words to raise funds for Mr Mackay so that Mr Mackay can meet and defend the defamation action brought against him by Mr Bennette, the defamation action being founded on a letter written by Mr Mackay criticising Mr Bennette for his developments.”

172 Counsel further submitted that the respondent was

“… speaking in support of Mr Mackay’s letter, in support of the defamation action and is entitled to characterise, as he did the [appellant’s] conduct in bringing the proceedings against Mr Mackay and his conduct generally, which would be well known to persons in the Suffolk Park area.”

173 The foregoing submissions may well have been relevant to the third imputation conveyed by the first matter complained of but they do not support the first and second imputations with respect to both matters complained of that the appellant was a thug and bully. Neither the appellant’s “conduct generally” nor his development of the land were relevant to the subject matter of the meetings which, as the submissions conceded, was to raise funds for Mr Mackay’s defence.

174 I can see no connection between what the respondent conceded was the subject matter of the occasion constituted by the mutual interests of the respondent and his audience in raising funds for Mr Mackay’s defence and what I regard as the totally unconnected assertions that the appellant was a thug and a bully.

175 Furthermore, the respondent’s submission that people were entitled to criticise the appellant’s development of the land to ensure that if people such as Mr Mackay were sued in defamation, they were able to obtain legal representation, said more for the interests of Mr Mackay than it did for those of the respondent. Mr Mackay had an interest in raising funds for his defence: the respondent did not.

176 At the end of the day counsel’s submission on behalf of the respondent was in the following terms:

“…The small community would be interested in the developments of the appellant, his conduct in suing Mr Mackay for criticising that development, issuing a statement of claim, claiming a large amount, trying to prevent the meeting being held to raise funds and so on. I don’t think I can take interest any further.”

177 As the appellant conceded that the third imputation conveyed by the matter complained of was relevant to the occasion, it may have had some connection to the interest articulated by the respondent’s counsel to which I have just referred as well as to his submission with respect to what were referred to by the respondent as SLAPP suits (see [115] above). But the same cannot be said of the other imputations. They were in my opinion irrelevant and extraneous to the occasion of qualified privilege and were, therefore, outside and unconnected with the subject matter of the occasion. It is unnecessary to decide whether the concession with respect to the third imputation was correctly made.

178 For the foregoing reasons in my opinion his Honour therefore erred in finding that the first and second imputations conveyed by each of the matters complained of was made on an occasion of qualified privilege. In my view that defence should have been rejected with respect to those imputations.

The challenge to the primary judge’s findings with respect to the issue of malice

179 In view of my findings in relation to the defence of common law qualified privilege with respect to the first and second imputations conveyed by the matters complained of, it is unnecessary to consider the issue of malice which the primary judge found in favour of the respondent.

180 So far as the third imputation conveyed by the first matter complained of is concerned, it was not suggested that that was actuated by malice.

The primary judge’s findings with respect to the defence of comment

181 The primary judge recognised that, relevantly, the defence of comment could only succeed if the following three elements were established. First, that the imputations were truly comment or expressions of opinion and not statements of fact. Second, that the comment was based on proper material for comment. Third, that the comment related to a matter of public interest.

182 His Honour held (at [261]) that all of the imputations qualified as comment. This may well be so with respect to the third imputation conveyed by the first matter complained of, but in my view, the imputations that the appellant was a thug and a bully were statements of fact. In this respect, both the first and second matters complained of contained specific statements by the respondent that the appellant was both a thug and a bully.

183 As I understand his Honour’s reasoning, two clear themes emerged from the respondent’s statements. First, he spoke on the first occasion of the court action taken by the appellant against Mr Mackay as well as a defamation case in which the respondent himself had been personally involved (but which did not involve the appellant). He then referred to “SLAPP suits” and posed a rhetorical question:

“[I]f you think you are going to hit by defamation, did he manipulate the system? I’ll leave it up to you.”

184 After referring to the appellant demanding $750,000 (being the amount claimed in his Ordinary Statement of Claim – see [104] above), the respondent said:

“I don’t know where he got the $750,000 from but presume it’s just another type of intimidation material.”

185 The second theme was that on each occasion the respondent referred to the appellant having taken proceedings against himself, alleging, in effect, acts of violence, this being a reference to the AVO which the appellant had sought against the respondent. In dealing with the AVO proceedings, the respondent said:

“So, don’t be intimidated by the likes of him. We can go through the court processes and we can win.”

186 The foregoing statements of the respondent clearly support a finding that the third imputation in the first matter complained of was comment.

187 After alleging that the appellant was “working illegally”, the respondent then said that on that occasion he:

“… went down there, had a few words with him … and so I called him … a thug and a bully, and it came out in court and to be quite honest, he is. And it’s only a community that’s united that can deal with a thug and a bully …”

188 On the second occasion, the respondent said that

“it was about him taking an apprehended violence order out against me because I went down to his site and told him what I thought of him and basically called him a bully and a thug … seemed reasonable at the time.”

189 After a male voice said “Even if he is a bully and a thug” the respondent continued:

“It is proven in a court of law that Jerry Bennette is a bully and a thug so I’m not telling you anything … It’s really important that we recognise that … we have these sort of people in our community and that the issue is not going to go away … when we have increasing pressure from very ugly bullies and thugs, white shoe brigade, developer, people like Jerry Bennette …”

190 The foregoing statements clearly conveyed the imputations that the appellant was a thug and was a bully. Were they conveyed as statements of fact or comment?

191 After referring to the distinction between an allegation of fact and an expression of opinion articulated by Giles JA in John Fairfax Publications Pty Ltd v O’Shane [2005] NSWCA 164 at [25], [27], [29] and [32], his Honour made the following finding:

“263 Although it is not necessary for a defendant to have set out, in the course of publishing the matters complained of, material from which a reader or listener could reasonably infer that what has been said is a deduction, inference, conclusion, criticism, or remark or observation, the defendant in the present case has done precisely that. From both the written and spoken versions of each of the matters complained of in the present case, one gets the very distinct impression that the imputations are a round-up or summary of the factual matters to which the defendant has referred. In all cases the imputations appear to me to draw upon no more or less than the defendant's personal experiences with the plaintiff or his knowledge of Mr Mackay's experience with him. …”

192 The primary judge concluded as follows:

“264 In my opinion, the ordinary reasonable listener would have understood these imputations as expressions of opinion. The circumstances of the publications, the language used and the degree of emotion and judgment all point to opinion rather than fact. The defendant appears to me to have given the audience on each occasion the opportunity to judge for themselves how far his opinion is well founded rather than to proffer the imputations in this case as a series of facts.”

193 The appellant submitted that the question of whether an imputation is an allegation of fact or an expression of opinion is ultimately a question of the construction of the matter complained of. If a defamatory imputation is to be defended as comment it must be recognisable by the ordinary reasonable reader or listener as comment and the key to this is whether it is supported by facts, stated or indicated, upon which the comment may be based. Accordingly, a statement may be regarded as a comment as distinct from an allegation of fact only if the facts on which it is based are stated or indicated with sufficient clarity to make it clear to the ordinary reasonable reader or listener that it is comment on those facts.

194 The appellant submitted that it was clear from the language he used in both matters complained of and which I have extracted at [185]–[187], that the statements that the appellant was a thug and a bully were being advanced as statements of fact. It was further submitted that contrary to the findings of the primary judge at [263] of his judgment, the respondent did not state any facts from which an ordinary reasonable reader or listener could conclude that the appellant was a thug and a bully apart from the respondent’s assertions that he was. This was especially so with respect to the second matter complained of, where no factual basis was stated or indicated from which it could be concluded that the appellant was a thug or a bully. Accordingly, the appellant submitted, his Honour had erred in finding to the contrary.

195 The respondent submitted that a statement is one of fact if the ordinary reasonable reader or listener is not told why the defendant writes or says the imputation. The submission continued in these terms:

“If the defendant says so and so is a murderer full stop, that would be a statement of fact. If he says so and so is a murderer because he issued a writ for $750,000, issued it against a man personally, that would be comment on giving the reasons. Now I can’t do better than that.”

196 A little further on in the argument, the following additional submission was made:

“If I said X is a murderer because he was seen walking out of the room with a smoking gun with blood on his hands and a corpse was in the room, then it’s a comment based on those facts. If I said the appellant is a thug and a bully full stop, it’s a statement of fact. If I said he’s a thug and a bully because he issued a statement of claim against Mr Mackay claiming a large amount of money personally, was trying to prevent free speech and had taken out AVO proceedings against him, then they’re the reasons why he’s calling the appellant a thug and a bully, they become matters of comment.”

197 The difficulty with the last submission is that it misrepresents what the respondent said. As was noted in argument, deciding whether something is comment or fact depends upon a close analysis of the particular text. An analysis of the text of both matters complained of to my mind leads inevitably to the conclusion that the assertions by the respondent in the first matter complained of that he called the appellant a “bully” or “a thug and a bully” and that “to be quite honest, he is” and in the second matter complained of that he told him what he thought of him and “called him a bully and a thug” would convey to the ordinary reasonable reader or listener that the respondent was asserting as a statement of fact that the appellant was, indeed, a thug and a bully. In my respectful opinion, his Honour’s finding to the contrary cannot be sustained.

198 It follows from the foregoing that the defence of comment fails the threshold first element.

199 But even if I am wrong and the imputations were comment, in my view the respondent fails the second test, namely, that the comment was based on proper material for comment. To be proper, such material must be accurate and complete.

200 The primary judge held (at [266]–[267]) that this second element was satisfied. He noted that the appellant had emphasised the failure of the respondent to draw to the attention of the audience the fact that Mr Mackay had himself sued the appellant claiming $750,000, so that the respondent’s pejorative references to the appellant having sued Mr Mackay for the same amount were inaccurate or incomplete by reason of that omission. This submission was rejected by his Honour on the basis that there was no evidence that the respondent was aware that Mr Mackay had sued the appellant at all.

201 But the appellant’s submissions to his Honour, and certainly to this Court, were not confined to the omission referred to by the primary judge. If the references to the appellant being a bully and a thug were comments, then they could only be based on the statement in the first matter complained of that “it came out in court” that the appellant was a thug and a bully – an assertion conceded by counsel for the respondent to be inaccurate. The assertion in the second matter complained of that “it is proven in a court of law that Jerry Bennette is a bully and a thug” was also false.

202 At its highest, the respondent’s submission was that which I have recorded at [194] above. However, no reasonable listener could have concluded that by reason of the matters referred to the speaker was doing any more than opining that the appellant was a thug and a bully.

203 In my view a close analysis of the text of the matters complained of reveals no material of sufficient accuracy or completeness which would justify a finding that if the imputations that the appellant was a thug and a bully were comment, that this comment was based on proper material. Accordingly, in my view the defence of comment fails the second element necessary for its success.

Conclusion

204 In my respectful opinion, the primary judge erred in finding that with respect to the first and second imputations conveyed by each of the matters complained of, the defences of common law qualified privilege and comment should succeed. In my view each of these defences failed.

205 It follows that the appellant is entitled to judgment in the sum of $15,000. I would therefore propose the following orders:

(a) Appeal allowed.

(b) Set aside the orders made by Harrison J on 10 July 2007.

(c) Judgment for the appellant against the respondent in the sum of $15,000.

(d) The respondent to pay the appellant’s costs of the proceedings at first instance, of the summons for leave to appeal and of the appeal but to have with respect to the latter a certificate under the Suitors’ Fund Act 1951, if otherwise qualified.

206 CAMPBELL JA: I agree with the reasons given by Tobias JA so far as comment and malice are concerned. So far as qualified privilege is concerned I agree with the reasons of Ipp JA.

207 I would add some explanation concerning the way in which the public interest impacts upon common law qualified privilege. It seems uncontroversial that the notion of the public interest operates as a means of limiting the sorts of reciprocal duty or interest that can give rise to qualified privilege. However one does not enquire whether the particular statement that was defamatory was made in circumstances such that the reciprocal interest of the maker and recipient of the statement was such that the making of that statement itself advanced the welfare of society and the public interest. Rather, the requirement of public interest, for the existence of qualified privilege operates at a higher level of generality, that the duty or interest of both maker and recipient is such that it is in the public interest that a person should be free to make that type of statement in the type of circumstances where the particular statement in question was made.

208 An archetype of a statement protected by qualified privilege is when someone’s former employer gives an honest answer to a prospective employer of that person who enquires about the ability and character of that prospective employee. The former employer’s answer to that question is unlikely to have the slightest effect on the life of the average resident of this State. Even so, the duty of the former employer to give an honest answer when asked, and the interest of the prospective employer in finding out the truth on that topic, are of such a kind that it is nonetheless in the public interest that former employers should be free to give an honest answer to that type of question. I recognise that this archetype is one where the privilege is usually explained as arising from a duty of the former employer to give an honest answer to the question, rather than as arising from any interest of the former employer, but I doubt that that affects how the public interest operates in determining whether the statement is the subject of qualified privilege.

209 The caselaw quoted in the judgment of Ipp JA bears out that it is by reference to the type of communication involved in the defamatory utterance, rather than the particular defamatory utterance itself, that the public interest is to be gauged. In Toogood v Spyring Parke B said (at 193; 1050):

“… such communications are protected for the common convenience and welfare of society ...” (emphasis added)

210 The statement of Latham CJ in Guise v Kouvelis considered whether it was conducive to social welfare that the type of statement there involved should be made with impunity. In Andreyevich v Kosovich and Publicity Press (1938) Pty Ltd Jordan CJ considered whether the common convenience and welfare of the people of New South Wales would be advanced if “Yugoslavs who had made this State their home” were free to make a particular type of statement.

211 Applying this test in the circumstances of the present case requires identification of the type of defamatory statements Mr Cohen made, by reference to both their content and circumstances of making. I would characterise them as being statements each made at a public meeting of a fairly large number of the residents of a local area, on the occasion of one local resident having sued another local resident for defamation, that were calculated to encourage people at the meeting to provide money for the defence of that defamation claim, where the statements were volunteered, and were denigratory of the plaintiff in that defamation action. I am not persuaded that it is in the public interest that statements of that type should be able to be made with impunity.

212 I agree with the orders proposed by Tobias JA.

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