Daily Examiner Pty Ltd v Mundine

Case •

[2012] NSWCA 195

•

28 June 2012

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Daily Examiner Pty Ltd v Mundine; Brown v Mundine [2012] NSWCA 195
Hearing dates:2 April 2012
Decision date: 28 June 2012
Before: McColl JA, Whealy JA & Tobias AJA
Decision:

(1)   Refuse the appellants' applications for an extension of time to file their Notices of Appeal.

(2)   Appellants to pay the respondent's costs of the applications to extend time and of hearing of the appeal proceedings generally.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

DEFAMATION - common law qualified privilege - jury trial - appeal against primary judge's findings - where respondent not identified in matter - whether trial judge correct that publication was to world at large - whether publication to recipients who would not identify respondent merely incidental

DEFAMATION - statutory qualified privilege - s 30 Defamation Act 2005 - whether appellants' conduct reasonable in the circumstances - whether reasonableness determined by principles in Reynolds v Time Newspapers Ltd.

PRACTICE and PROCEDURE - extension of time - where leave applied for unnecessarily - leave rejected - whether time to file notice of appeal should be extended
Legislation Cited: - Civil Procedure Act 2005 (NSW) - s 56 to s 60
- Defamation Act 2005 (NSW) - s 8, s 22, s 24, s 30, s 31
- Judiciary Act 1903 (Cth)
- Supreme Court Act 1970 (NSW) - s 101, s 102
- Uniform Civil Procedure Rules 2005 (NSW) - 51.9
Cases Cited: - Adam v Ward [1917] AC 309
- Aktas v Westpac Banking Corp Ltd [2010] HCA 25; 241 CLR 79
- Amalgamated Television Services Pty Limited v Marsden [2002] NSWCA 419
- Andreyevich v Kosovich & Publicity Press (1938) Pty Ltd (1947) 47 SR(NSW) 357
- Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175
- Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354
- Australian Broadcasting Corporation v Comalco Ltd (1986) 12 FCR 510
- Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; 218 CLR 366
- Bennette v Cohen [2005] NSWCA 341; 64 NSWLR 81
- Besser v Kermode [2011] NSWCA 174; 282 ALR 314
- Bonnick v Morris [2003] 1 AC 300
- Cush v Dillon; Boland v Dillon [2011] HCA 30; 85 ALJR 865
- Daily Examiner Pty Ltd v Mundine [2011] NSWCA 126
- Davis v Nationwide News Pty Ltd [2008] NSWSC 699; 71 NSWLR 606
- Dow Jones & Co Inc v Gutnick [2002] HCA 56; 210 CLR 575
- Fairfax Publication Pty Ltd v Hitchcock [2007] NSWCA 364; 70 NSWLR 484
- John Fairfax & Sons Ltd v Vilo [2001] NSWCA 290; 52 NSWLR 373
- Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89
- Flood v Times Newspapers Ltd [2012] UKSC 11; 2 WLR 760
- Gett v Tabet [2009] NSWCA 76; 254 ALR 504
- Goyan v Motyka [2008] NSWCA 28; [2008] Aust Torts Reports 81-939
- Hebditch v MacIlwaine [1894] 2 QB 54
- Holmes a Court v Papaconstuntinos [2011] NSWCA 59; [2011] Aust Torts Reports 82-081
- Jameel v Wall Street Journal Europe Sprl Jameel v Wall Street Journal Europe Sprl [2006] UKHL 44; (2007) 1 AC 359
- Korean Times Pty Ltd v Pak [2011] NSWCA 365
- Lange v Australian Broadcasting Corporation [1997] HCA 25; 189 CLR 520
- Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188
- Lindholdt v Hyer [2008] NSWCA 264; 251 ALR 514
- Martin v The Nominal Defendant (1954) 74 WN (NSW) 121
- Megna v Marshall [2010] NSWSC 686
- Moit v Bristow [2005] NSWCA 322
- Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749
- Mundine v Brown (No 6) [2010] NSWSC 1285
- Mundine v Brown (No 7) [2011] NSWSC 170
- Reynolds v Time Newspapers Ltd [1999] UKHL 45; (2001) 2 AC 127
- Richards v Cornford (No 3) [2010] NSWCA 134
- Roberts v Bass [2002] HCA 57; 212 CLR 1
- Rogers v Nationwide News Pty Ltd [2003] HCA 52; 216 CLR 327
- Sali v SPC Ltd [1993] HCA 47; 67 ALJR 841
- Skalkos v Assaf [2002] NSWCA 14; [2002] Aust Torts Reports 81-644
- Sophron v Nominal Defendant (1957) 96 CLR 469
- Stephens v West Australian Newspapers Ltd [1994] HCA 45; 182 CLR 211
- Stollznow v Calvert [1980] 2 NSWLR 749
- Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; 182 CLR 104
- Warren v Coombes [1979] HCA 9; 142 CLR 531
- Witten v Lombard Australia Ltd (1968) 88 WN (Pt 1) (NSW) 405
Category:Principal judgment
Parties: Avery Brown (Appellant/Second Respondent)
Daily Examiner Pty Ltd (Appellant/Second Respondent)
Lana Mundine (First Respondent)
Representation: Counsel:
Ms P. Wass (Appellant/Second Respondent)
G.O'L. Reynolds SC, A.T.S. Dawson, Ms G.R. Rubagotti (Appellant/Second Respondent)
T. Molomby SC, R.K.M. Rasmussen (First Respondent)
Solicitors:
Holding Redlich Lawyers (Appellant/Second Respondent)
Bani Haddock Fiora (Appellant/Second Respondent)
Slater & Gordon Lawyers (First Respondent)
File Number(s):2009/297431
 Decision under appeal 
Jurisdiction:
9111
Citation:
[2010] NSWSC 1285
Date of Decision:
2010-11-05 00:00:00
Before:
Harrison J
File Number(s):
2009/297431

Judgment

  1. THE COURT:

An overview

There are two appeals before the Court. The first appellant is Avery Brown ("Mr Brown"). The second is Daily Examiner Pty Limited ("the newspaper"). The appellants were defendants in defamation proceedings brought against them by the first respondent ("Ms Mundine"). The proceedings related to a front page article published on 18 August 2008 in the Daily Examiner newspaper, of which Mr Brown was in large measure the author. The Daily Examiner is a newspaper published on the north coast of New South Wales. It has a circulation that principally covers the Clarence Valley region, but it extends beyond that area. It describes itself as "the north coast's first newspaper". At the time of publication, it had a readership of some 11,948.

  1. Following the jury's findings that the newspaper article defamed Ms Mundine - notwithstanding that she was not named in the publication - by imputing that she was incompetent in her occupation as a mental health worker in Grafton, Harrison J (the primary judge) set about determining whether the appellants had established defences of qualified privilege, and, if applicable, to quantify damages. His Honour rejected these defences, both statutory and at common law, and awarded Ms Mundine damages of $60,000: Mundine v Brown (No 6) [2010] NSWSC 1285 ("the primary judgment"). Later, in a separate judgment, his Honour ordered the newspaper to pay indemnity costs and Mr Brown to pay costs on the ordinary basis: Mundine v Brown (No 7) [2011] NSWSC 170 ("the costs judgment").

  1. The Notices of Appeal, in circumstances we shall mention shortly, were filed well out of time. Each appellant seeks to invoke the Court's power to extend time for the filing of those notices: UCPR 51.9(1)(b). Ms Mundine opposes the applications to extend time, arguing that she has been prejudiced and that the appeals, in any event, are without merit.

  1. The Notices of Appeal raise a number of grounds that, it appears, are not pressed. The essential issues on appeal raised in the written and oral submissions for each of the appellants concern the primary judge's findings that the article was not published on an occasion of qualified privilege at common law and that the appellants had not established a defence pursuant to s 30 of the Defamation Act 2005 (NSW) ("Defamation Act"). The appellants seek orders that both judgments of the primary judge be set aside and that this Court should find that the article was published on an occasion of qualified privilege at both common law and pursuant to s 30 of the Defamation Act.

The procedural issue - should time to file the Notices of Appeal be extended?

  1. The primary judgment was delivered on 5 November 2010. The costs judgment was given on 18 March 2011. A Notice of Intention to Appeal was filed on 30 November 2010. The respective appellants then apparently formed the view that leave to appeal was necessary and a summons for leave to appeal from the November 2010 judgment was lodged. That summons was within time had leave to appeal been the appropriate appellate route. Leave was opposed. After hearing argument, on 13 May 2011 this Court (Basten and Macfarlan JJA) refused leave to appeal with costs: Daily Examiner Pty Ltd v Mundine [2011] NSWCA 126. Their Honours identified the qualified privilege argument, but determined that the primary judge's rejection of the defence had not been patently wrong, had essentially involved issues of fact, and did not raise any question of principle. Thereafter, the appellants made applications for special leave to appeal from this decision to the High Court of Australia.

  1. The reason for the appeals being out of time is not in issue. Simply, the appellants' lawyers made a serious error. Experienced lawyers, with the guidance of counsel, took the view (wrongly) that an appeal from the primary judgment did not lie as of right as the damages awarded were less than $100,000, and that it was necessary to apply for leave to appeal pursuant to s 101 of the Supreme Court Act 1970 (NSW). The correct position was that an appeal lay as of right pursuant to s 102 of the Supreme Court Act.

  1. The solicitor for the newspaper, Mr Graham Hryce, deposed in his affidavit of 31 August 2011 that after the primary judge had handed down his judgment in relation to liability and damages on 5 November 2010, he formed the view that, because of the amount of the judgment, it was necessary to seek leave to appeal under s 101. He said that, in forming this view, he did not turn his mind to s 102 of the Supreme Court Act. On 30 November 2010, a Notice of Intention to Appeal was filed and a summons seeking leave to appeal was filed on 4 February 2011.

  1. It appears that, after 13 May 2011, when the application for leave to appeal was dismissed by this Court, Mr Hryce decided to brief Mr G.O'L. Reynolds SC to advise in relation to bringing an application for special leave from that dismissal in the High Court. In mid-June 2011, Mr Reynolds SC, although not briefed to advise on the point, stated that, in his view, the appellant had an appeal as of right pursuant to s 102 of the Supreme Court Act. Following receipt of this advice, a Notice of Appeal was filed on 17 June 2011.

  1. Mr Berry, the solicitor for Mr Brown, received instructions on 3 February 2011 to appeal the primary judge's decision given on 5 November 2010. He sought the view of his trial counsel, Ms Penelope Wass, in respect of the appeal procedure. Following discussions with Ms Wass, Mr Berry came to the view that, because of the amount of the judgment sum, it was necessary to seek leave to appeal under s 101. He said that he did not consider the possibility of a right of appeal under s 102 of the Supreme Court Act.

  1. In mid-June 2011, he was contacted by Mr Graham Hryce who told him that advice had been given by counsel that there was an appeal as of right. Following this, Mr Berry sought once again the views of Ms Wass and, thereafter, a Notice of Appeal was filed on 21 June 2011.

  1. It appears that, notwithstanding the decisions made by the newspaper and Mr Brown to each lodge an appeal in this Court, the High Court proceedings have been kept well and truly alive. The chronology filed on behalf of Ms Mundine shows the following:

14.07.11

Appellants granted first extension of time from High Court to file summary of argument and draft Notice of Appeal until 19.08.11

17.08.11

First return date before Registrar, Court of Appeal

18.08.11

Appellants seek second extension of time from High Court to file summary of argument until 19.09.11

06.09.11

Call-up - Court of Appeal - hearing date not set

19.09.11

Appellants granted third extension of time from High Court to file summary of argument to 13.10.11

11.10.11

Second call-up - appeal set down for hearing - 02.04.12

13.10.11

Appellants granted fourth extension of time from High Court to file summary of argument and application books to 30.04.12

  1. On the hearing of this appeal, it has been accepted that an appeal lay as of right from the decision of the primary judge made, as it was, following a jury trial: Bennette v Cohen [2005] NSWCA 341; 64 NSWLR 81 per Bryson JA, with whom Beazley JA and Brownie AJA agreed. Mr Dawson (who appeared with Mr Reynolds SC in Bennette) was trial counsel in the present matter and appears again with Mr Reynolds as his leader on this appeal. Mr Dawson also appeared for the newspaper when leave to appeal was sought and refused by this Court. Ms Wass appeared for Mr Brown on the leave application.

  1. Mr Reynold's submissions on the extension of time application may be stated briefly. He argued that the failure to appeal within time arose out of a simple oversight on the part of the lawyers, and that his client should not be punished in that regard. Secondly, the summons for leave to appeal was filed within time, even though the appeal was not. Thirdly, there was no prejudice to Ms Mundine. Fourthly, the appeal is a meritorious one, involving matters of high principle. Ms Wass joined with Mr Reynolds in these submissions.

  1. Mr Molomby SC, for Ms Mundine, submitted that more than simply oversight was involved. The appellants' lawyers were very experienced in this field and, indeed, as we have said, Mr Dawson was junior counsel in Bennette v Cohen. Secondly, Mr Molomby argued that a particular feature of this matter is that the appellants have endeavoured, over a considerable period of time, to keep their High Court application for special leave alive. They are, as he put it, "endeavouring to have the best of both worlds". Thirdly, Mr Molomby submitted that his client has sustained prejudice. She has not been paid her verdict. She has been made to endure the now admittedly misconceived leave process and now faces the uncertainty and delay of a further appeal. Further, each application for an extension of time in the High Court was made without notice to his client. He contended that costs are not a sufficient answer to these real matters of prejudice. Finally, Mr Molomby argued that there is no merit in the present appeal and that it is being used as no more than a vehicle to agitate an issue not raised at trial in the special leave application currently before the High Court, or in any future application for special leave to appeal from this decision.

  1. Since all parties to the appeal agree that one important consideration in the extension of time application relates to the merits or otherwise of the grounds of the appeal, it is desirable to turn now to examine the issues raised on appeal in some detail having had the advantage of full argument on those issues.

The central issue - the statutory background

  1. As we have said, the central issue in these appeals is whether the primary judge erred in finding that the appellants had not established their defences of qualified privilege. The submissions at first instance addressed both the statutory and common law defences of qualified privilege. The common law defence is retained according to s 24 of the Defamation Act. That section provides:

"24 Scope of defences under general law and other law not limited
(1) A defence under this Division is additional to any other defence or exclusion of liability available to the defendant apart from this Act (including under the general law) and does not of itself vitiate, limit or abrogate any other defence or exclusion of liability.
(2) If a defence under this Division to the publication of defamatory matter may be defeated by proof that the publication was actuated by malice, the general law applies in defamation proceedings in which the defence is raised to determine whether a particular publication of matter was actuated by malice."

  1. The statutory defence of qualified privilege is provided for under s 30 of the Defamation Act, which provides:

"30 Defence of qualified privilege for provision of certain information
(1)  There is a defence of qualified privilege for the publication of defamatory matter to a person (the "recipient") if the defendant proves that:
(a)  the recipient has an interest or apparent interest in having information on some subject, and
(b)  the matter is published to the recipient in the course of giving to the recipient information on that subject, and
(c)  the conduct of the defendant in publishing that matter is reasonable in the circumstances.
(2)  For the purposes of subsection (1), a recipient has an apparent interest in having information on some subject if, and only if, at the time of the publication in question, the defendant believes on reasonable grounds that the recipient has that interest.
(3)  In determining for the purposes of subsection (1) whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances, a court may take into account:
(a)  the extent to which the matter published is of public interest, and
(b)  the extent to which the matter published relates to the performance of the public functions or activities of the person, and
(c)  the seriousness of any defamatory imputation carried by the matter published, and
(d)  the extent to which the matter published distinguishes between suspicions, allegations and proven facts, and
(e)  whether it was in the public interest in the circumstances for the matter published to be published expeditiously, and
(f)  the nature of the business environment in which the defendant operates, and
(g)  the sources of the information in the matter published and the integrity of those sources, and
(h)  whether the matter published contained the substance of the person's side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person, and
(i)  any other steps taken to verify the information in the matter published, and
(j)  any other circumstances that the court considers relevant.
(4)  For the avoidance of doubt, a defence of qualified privilege under subsection (1) is defeated if the plaintiff proves that the publication of the defamatory matter was actuated by malice.
(5)  However, a defence of qualified privilege under subsection (1) is not defeated merely because the defamatory matter was published for reward."

Factual background

  1. It is convenient at this point to examine the newspaper article ("the article") in more detail. It was entitled "Aboriginal Services nowhere to be seen" and was published in the newspaper on 18 August 2008. The article was largely written by Mr Brown, subject to some minor editing by the sub-editor of the newspaper, Ms Kirsty Allen. He was an employee of the Aboriginal Legal Service, as well as being a leading Aboriginal affairs advocate, an Aboriginal elder and a co-head claimant in a land rights claim in the area. The text of the article was as follows:

"ABORIGINAL SERVICES NOWHERE TO BE SEEN
Leading Aboriginal affairs advocate Avery Brown has watched on in frustration during the past two years as more and more Aboriginals have been paraded before district courts. Disappointed and upset with the inadequacies in Aboriginal services, he is now speaking out in the hope of a better tomorrow for his people. He pulls no punches in his comments about how local Aboriginal services are failing to meet their obligations.
We do not need to visit the Northern Territory to comprehend the quality of life that remote Aboriginal communities endure. We only need to look in our own backyards.
Last week I attended a forum in Grafton to discuss the issues of domestic violence and mental health. As a field officer with the Aboriginal Legal Service, these issues frequently affect my clients.
I was sorely disappointed in the forum. It was organized by the Grafton Domestic Violence Committee so Aboriginal service providers could meet and discuss their concerns.
But unfortunately, many of the services did not attend, even though they were told about it months in advance.
I am now wondering whether they are interested in providing a good service or have just grown complacent.
We have a mental health crisis in the Clarence Valley and the truth is that mental illness - including alcohol and drug abuse - leads to crime, it leads to violence and it leads to poverty.
It has played a large part in the Aboriginal community becoming over-represented in the courts.
The Aboriginal Legal Service is under immense pressure from the justice system to provide an alternative to gaol, as it realises the extent of mental illness in our community and its link to domestic violence.
Although it is a big problem here, visibility from the Aboriginal services dealing with these issues is almost non-existent. There is a growing perception that service workers are hiding behind their desks.
I have on many occasions tried desperately to engage mental health intervention in extreme circumstances, but to no avail.
I hoped this forum would provide me with resources available to assist my clients. I was wrong.
I am sick and tired of being directed to use Aboriginal workers attached to mental health and domestic violence services and not getting the information or assistance I need.
Although I value Aboriginal-specific services, if being referred means my clients get a second-rate service, then I would rather use mainstream services.
I do not believe the support workers in the Aboriginal sector are appropriately accredited when compared with mainstream service providers.
As a result, the Aboriginal community is receiving below-standard level care.
At the moment there seems to be no performance review of workers and services, both in Aboriginal and mainstream providers.
What is clear is that Aboriginal services need to get out of their offices and into the community, especially in remote areas such as Baryulgil and Malabugilmah.
The disappointing part is that the services could make a huge difference in the community and in countless families if they did their jobs properly.
Today I am no closer in being able to access the services my clients need.
And they do need it.
Badly."

  1. The article appeared principally on the front page of the newspaper together with a large picture of Mr Brown. Its text was continued on page 5.

  1. Mr Brown gave evidence at trial that his objective in writing the article was to inform the community about the inadequacies of Aboriginal services. He cited issues including "chronic alcohol and drug abuse issues, domestic violence, suicides, homelessness, truancies from school" as issues that are not being adequately addressed: primary judgment at [43]. He stated that "the article in the paper was to try and draw attention to those issues in the community and to also jog those persons, CEOs and managers, to say, you workers need to get out there and you workers need to get together and deal with these issues and problems": primary judgment at [44]

  1. Ms Mundine commenced proceedings for defamation against the appellants in relation to the article because she saw it as a public attack on her. It is significant that the article did not mention Ms Mundine by name. For this reason, one of the issues for the jury was whether she had proved on the balance of probabilities that she was identified by the article, that is to say, in the language of s 22(2) of the Defamation Act, that "the [appellants] ... published defamatory matter about [her]". The jury found that she had done so.

  1. Ms Mundine is a qualified mental health worker with the Aboriginal Medical Service ("AMS") in Grafton. She grew up as an Aboriginal child and adolescent in the local community outside Grafton called Baryulgil. There are four separate Aboriginal communities in the Grafton area, including those of Maclean and Yamba. These are all located within the Clarence Valley District. Ms Mundine holds a Diploma in Mental Health and an Advanced Diploma in Health Science (Aboriginal Mental Health), among other qualifications. At the time the article was published she had been working for the AMS since 2001.

  1. The AMS was established in 1990. It is a non-government, non-profit organisation controlled by directors who all come from the local Aboriginal communities. Importantly, at the relevant time, Ms Mundine was the only Aboriginal mental health worker employed by that organisation. As such, she contended that the remarks in the article (regarding the quality of Aboriginal mental health services) were directly addressed at her and moreover, that since the Clarence Valley District is a comparatively confined region and her working and social life were closely connected to that community, a number of people were able to identify her as the target of the article. There was evidence that a specific number of people had identified her, but her case was that there were many others who would have recognised her as the object of the remarks in the article. Her work took her to Aboriginal people throughout the Clarence Valley, including to hospitals and prisons. She dealt with many people, in the ordinary affairs of her life, on a regular basis.

The primary judgment

The issues at trial

  1. Pursuant to s 8 of the Defamation Act, Ms Mundine had a single cause of action in relation to the publication of the article, a position which reflects the common law. At common law, it has become the practice to plead the defamatory imputations for which the plaintiff contended even where the plaintiff relied on the natural and ordinary meaning of the defamatory words: see generally Besser v Kermode [2011] NSWCA 174; 282 ALR 314 at [41]-[45]. Consistently with that practice, Ms Mundine had pleaded in her Amended and Further Amended Statement of Claim (and in substance in her original Statement of Claim) that the article conveyed the following defamatory imputations:

(a)   as a mental health worker she is failing to meet her obligations to the aboriginal community;

(b)   as a mental health worker in the aboriginal community she bears responsibility for the gross over-representation of the aboriginal community in the Courts;

(c)   as a mental health worker she is incompetent;

(d)   as a mental health worker she is unwilling to go out to the locations where her services are needed;

(e)   she is not appropriately accredited for her job as a mental health worker when compared to mainstream service providers;

(f)   she lacks commitment to her job as a mental health worker.

  1. She claimed that the publication of the article resulted in her being subjected to "hatred, ridicule and contempt and [that she] has suffered and continues to suffer distress and damage to her personal as well as her business and professional reputation": respondent's Further Amended Statement of Claim, dated 11 August 2009 at [6].

  1. In their defences, the appellants denied that the article was defamatory of Ms Mundine and that it could be understood to convey any of the above imputations about her. Mr Brown raised the following defences: qualified privilege under s 30 of the Defamation Act, common law qualified privilege, honest opinion under s 31, and fair comment at common law. The newspaper also raised the defences of qualified privilege and honest opinion.

  1. In her reply to the defences of qualified privilege, Ms Mundine contended that the publication of the article was actuated by an improper purpose or purposes on the appellants' part because each knew the imputations were false and because of their knowledge of the following facts, among others: that she was an Aboriginal mental health worker; that she visited remote communities in the Clarence Valley area; that she was the only Aboriginal person working in that area for an Aboriginal mental health service; that, at the date of publication, the appellants had no knowledge of Ms Mundine's accreditation as a mental health worker; and, that no attempt had been made to put the allegations to her before publishing the article. In addition, in response to Mr Brown, she contended that he was aware that the forum referred to in the article was not intended to cover mental health issues in the Aboriginal community at all and that he had not, in fact, tried to engage Ms Mundine's services for his clients.

The role of judge and jury

  1. Pursuant to s 22(2) of the Defamation Act, the jury was to determine whether any defence raised by the appellants had been established. However, s 22(5)(b) provides that nothing in s 22 requires or permits a jury to determine any issue that, at general law, is an issue to be determined by a judicial officer. At general law, it is for the judge to say whether, on the facts as found by the jury (in the case of dispute), the matter complained of was published on a privileged occasion: Hebditch v MacIlwaine [1894] 2 QB 54 at 58; Adam v Ward [1917] AC 309. In Davis v Nationwide News Pty Ltd [2008] NSWSC 699; 71 NSWLR 606, McClellan CJ at CL approached s 30 of the Defamation Act on the basis that the general law position - that the question of reasonableness of the appellant's conduct for the defence of qualified privilege is a matter for the judge - is preserved by virtue of s 22(5)(b). The primary judge appears to have followed that course in determining the s 30 issue. Neither appellant suggests his Honour erred in any respect in so doing. We shall assume, without finally deciding, that his Honour was correct to do so.

  1. It is not apparent that the parties contended there were any disputed issues of fact for the jury's determination for the purposes of the qualified privilege defences: cf Hebditch v MacIlwaine. However, the jury was asked to determine for the purposes of the appellants' defences of honest opinion (s 31 Defamation Act) whether they established that certain matters were substantially true: s 31(5)(a) Defamation Act. Both the appellants and the respondent have sought to invoke various of the jury's findings in this respect in relation to the issues arising under qualified privilege. We proceed, accordingly, as the primary judge did, on the basis that those findings of fact can also be considered as relevant to whether the qualified privilege defences were established.

  1. In the light of the foregoing, it fell to the primary judge to determine as a matter of law whether the article was published on an occasion of qualified privilege at common law or whether the appellants had established a defence of qualified privilege pursuant to s 30 of the Defamation Act, the jury having found that Mr Brown's publication of the article was not actuated by malice.

The findings of the jury and primary judge

  1. After a seventeen day hearing, the jury made the following relevant findings (primary judgment at [1]-[2]):

(1)   that Ms Mundine had proved on the balance of probabilities that she was sufficiently identified by the article even though she was not named in it;

(2)   that she had proved on the balance of probabilities that the article conveyed two meanings to an ordinary reader;

(3)   that of these two meanings only one was defamatory, namely, that Ms Mundine was incompetent as a mental health worker;

(4)   that Mr Brown was not motivated by malice towards Ms Mundine in publishing the article.

  1. As we have said, the jury also made a number of findings of fact for the purposes of the defence of honest opinion. The appellants relied upon the following facts as found by the jury:

(a)   Avery Brown is an Aboriginal person;

(b)   there are inadequacies in Aboriginal services in the Clarence Valley;

(c)   Avery Brown is a Field Officer with the Aboriginal Legal Service, Grafton;

(d)   Avery Brown's clients are frequently affected by issues of domestic violence and mental health;

(e)   on 14 August 2008, Avery Brown attended a forum organised by the Grafton Domestic Violence Committee ("the forum");

(f)   the forum was organised so that Aboriginal service providers could meet and discuss their concerns;

(g)   Aboriginal service providers had been invited to attend the forum and were on notice of the forum prior to the event;

...

(i)   many service providers did not attend the forum;

(j)   there is a mental health crisis in the Clarence Valley;

(k)   mental illness including alcohol and drug abuse leads to crime, violence and poverty related issues;

(l)   Aboriginal persons are over represented in the criminal justice system;

...

(p)   the Aboriginal community is receiving below standard care;

(q)   there are remote Aboriginal communities in the Clarence Valley area, including Malabugilmah and Baryugil;

(r)   there is a significant need for Aboriginal services in the community.

  1. The jury also found the following facts to be untrue (primary judgment at [93]):

"(h) The Forum was convened to discuss mental health issues and domestic violence issues.
(m) There is pressure on the Aboriginal Legal Service from the justice system to provide an alternative to gaol.
(n) Mr Brown had tried to engage mental health intervention on many occasions in extreme circumstances to no avail.
(o) Support workers in the Aboriginal sector are not appropriately accredited when compared with mainstream service providers."

Preliminary issue - who were the recipients?

  1. On the issue of common law qualified privilege, the primary judge identified a preliminary issue for consideration. This related to the fact that the article in question did not refer to Ms Mundine by name. The preliminary issue was whether the appellants needed to establish the defence of common law qualified privilege in relation to publication to the whole readership of the newspaper, or whether it was sufficient to establish it in relation to only those people who identified Ms Mundine as the subject of the defamatory imputation in the article. Ms Mundine submitted that the article was published to the public at large and that, essentially, the appellants needed to defend the publication to its entire readership. On the other hand, the appellants contended that only a small group of readers were actually able to identify Ms Mundine and that they only needed to show that publication to those recipients was protected.

  1. Ms Mundine gave evidence that fourteen people had identified her as the person referred to in the article. They included her family and close friends, work colleagues and clients: primary judgment at [12] and [15]. She also submitted that it could plainly be inferred that there was identification that went beyond these fourteen people. In support of this inference, she pointed to her activities in the community in her role as an Aboriginal mental health care worker and the fact that there was an article that appeared in The Koori Mail that referred to her by name as an Aboriginal mental health care worker: primary judgment at [16].

  1. Mr Brown submitted that the defamatory imputation was published only to those that were able to identify Ms Mundine as a mental health worker and consequently, the group of people was limited to patients, carers and co-workers: primary judgment at [13].

  1. The newspaper similarly contended that publication in these proceedings was not to its entire readership but only to a small group of identified people who had knowledge of certain facts about her: primary judgment at [14]. Further, the newspaper submitted that there was no evidence that any person outside that group of people had identified Ms Mundine from the article: primary judgment at [17]. If there were any people outside this group, the newspaper submitted, they would be few in number and should properly be regarded as "incidental recipients": primary judgment at [19].

  1. In considering this preliminary issue, the primary judge referred to the High Court's decision in Lange v Australian Broadcasting Corporation [1997] HCA 25; 189 CLR 520 ("Lange") at 572:

"... apart 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."

  1. His Honour also quoted the following statement from Aktas v Westpac Banking Corporation Ltd [2010] HCA 25; 241 CLR 79, per French CJ, Gummow and Hayne JJ at [14]: "The requirement of reciprocity of interest generally denies the common law privilege where the matter has been disseminated to the public at large".

  1. On this issue, his Honour found that the appellants' argument regarding the identification of a specific group of people was "to a considerable extent both circular and self-serving". He continued (at [26]):

"It proceeds upon the assumed basis that only those people with an interest in or understanding of the provision of Aboriginal mental health services in the Clarence Valley would have identified Lana Mundine as an Aboriginal mental health worker. The argument seeks in effect to draw upon the proposition that Ms Mundine was unidentifiable or unknown beyond the range of people who knew her professionally or who were in some close and informed relationship to such people. That is a proposition that the defendants must prove on the balance of probabilities. I do not consider that they have done so. I do not consider that they could do so."

  1. The primary judge therefore found that the matter was disseminated to the public at large and that any defence of qualified privilege at common law must be established in relation to the whole readership: primary judgment at [29].

Common law qualified privilege

  1. After addressing this preliminary issue, the primary judge then moved onto the substantive issue of the defence of common law qualified privilege. Mr Brown submitted that, to make out the defence, he had to demonstrate that he published the matter complained of on a matter of public interest, that he had a duty to publish the information and that those to whom it was published had a reciprocal interest in receiving it: primary judgment at [41], see also [46].

  1. Ms Mundine contended that the fact the appellants had denied that the article was capable of referring to her tended to suggest that it had not been published pursuant to any reciprocity of duty or interest with the newspaper's readership: primary judgment at [34]. There was, it was submitted, an element of inconsistency between the two situations.

  1. Ms Mundine also submitted that the fact that the publication was volunteered, rather than requested, went towards a finding that there was no defence of common law qualified privilege. She cited the dissenting judgment of McHugh J in Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; 218 CLR 366 at [77]: "... where 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"; see also Goyan v Motyka [2008] NSWCA 28; [2008] Aust Torts Reports 81-939 at [86] per Tobias AJA; Bennette v Cohen at [21] per Ipp JA. We note in passing that this passage in McHugh J's judgment was considered by the Court of Appeal in Holmes a Court v Papaconstuntinos [2011] NSWCA 59; [2011] Aust Torts Reports 82-081 in which the Court (McColl JA, Allsop P, Beazley, Giles and Tobias JJA agreeing) found (at [98]) that his Honour in Bashford differed from the majority on that point; (at [103]) that McHugh J's opinion in the quoted paragraph was not supported by authority; and (at [140]) that his views on the decisiveness of voluntariness were not the law in Australia. The High Court granted special leave in Holmes a Court v Papaconstuntinos. The appeal has been heard and judgment has been reserved. The primary judge in these proceedings did not determine the defence on the basis of voluntariness and none of the parties in this appeal addressed it. As such, we shall say no more about it.

  1. Mr Brown submitted that, in his role as an advocate for Aboriginal affairs and a Field Officer with the Aboriginal Legal Service, he had a duty to speak out about what he recognised as injustices facing Aboriginal people in the Clarence Valley. He submitted that the lack of health treatment and high levels of incarceration of Aboriginal people in the region were clearly matters of public concern for both the publisher and the recipients: primary judgment at [48]. He also adopted the newspaper's submissions.

  1. The newspaper adopted the approach to determining the issues raised by the defence of common law qualified privilege outlined by Simpson J in Megna v Marshall [2010] NSWSC 686. Its written submissions at trial, relevant to the question of both common law and statutory qualified privilege, raised the following matters: that the article and defamatory imputation related to subjects of public interest; that the newspaper published the article for the information of the public and had a social and/or moral duty to do so; that the recipients had a reciprocal interest in receiving it; that the newspaper believed that readers had an interest in the activities of Aboriginal service providers; that the newspaper published the article as a means of giving Mr Brown a way of communicating the matters of public interest to the public; that it had an honest belief in the truth of what it published and took care to form a belief in the accuracy of the information in the article; that its conduct was reasonable in the circumstances; and, finally, that to the extent that the publication were found to be published to one or more recipients, the matter would be published under an occasion of qualified privilege with regard to those recipients, and the publication was reasonable to that extent.

  1. The primary judge considered (at [51], [53] and [82]) the defence of common law qualified privilege within the Megna v Marshall "framework". He examined four issues under the heading "The first question". First, the circumstances of the case: Moit v Bristow [2005] NSWCA 322 at [78] per McColl JA. He considered the evidence given by Mr Brown that 99% of his clients who had been incarcerated had a mental illness, a drug or alcohol issue or all three: primary judgment at [56]. He also considered Mr Brown's evidence on the forum referred to in the article which was the Grafton Forum on Aboriginal Services for Domestic Violence, the contact he had previously had with Michelle Fairweather, the drug and alcohol worker at the Aboriginal Medical Service, the findings of a University of New South Wales report regarding the Aboriginal community and evidence given by the local Member of Parliament. Based on this evidence, his Honour accepted (at [62]) that there was a "mental health crisis in the Aboriginal community in the Clarence Valley, and that the article was published in those circumstances".

  1. Secondly, his Honour turned to the identification of the subject matter of the communication. The appellants submitted that the subject matter was the perceived inadequacies in the delivery of medical and social services to the Aboriginal community in the Clarence Valley. Ms Mundine contended that the subject matter was that Aboriginal services were letting down their community. The primary judge considered (at [65]) that there was no material difference between these characterisations and it was "sufficient to identify the subject matter as the inadequacies in Aboriginal service delivery to Aboriginals in the Clarence Valley region": at [65].

  1. Thirdly, his Honour considered (at [46]) the relevant duty or interest of the appellants. The appellants submitted that as an Aboriginal services worker, Mr Brown had a duty to speak out to those who were in a position to do something about the crisis in the region, and that the newspaper had a duty to bring matters of the public interest to the attention of the local community: at [68]-[70]. On this point, the primary judge found (at [72]) that:

" ... the appellants had neither a duty to, nor an interest in, publishing the matter complained of in any circumstances. The subject matter of the publication was of general interest and a local newspaper has an uncontroversial interest in publishing material on local issues. However, as is well known, a publication in a newspaper is not the subject of qualified privilege merely because it gives the public information concerning a matter in respect of which the public is interested. Something more is needed to constitute either a duty or an interest on the part of the newspaper to communicate the information: see Morosi [v Mirror Newspapers Ltd [1977] 2 NSWLR 749] at 778."

  1. Fourth, his Honour considered whether the recipients of the publication had a reciprocal interest in receiving information of the kind the article contained. The appellants relied relevantly on the following passage in the judgment of Smithers J in Australian Broadcasting Corporation v Comalco Ltd (1986) 12 FCR 510 at 542:

"It cannot be doubted that the treatment of Aboriginals by Australian authorities and white Australians is a matter of public interest, not in the sense of mere interest such as the result of a football match or the Melbourne Cup, but as a matter in respect of which all governments and all Australians have a continuing responsibility to examine developments and policies and in relation to which the formation of an informed public opinion is of importance for the formation of official policy and the establishment of standards of private conduct. ... [I]t is essential that Australians generally should be as accurately and as fully as possible informed of the conduct of governments, business men and others in Australia in relation to the Aboriginals."

  1. On this point, the primary judge found as follows (at [79]):

"Even though at a level of generality it can be said that the population of the Clarence Valley might hopefully have been expected to be interested in the provision of services to members of the Aboriginal community by the Aboriginal Medical Service, every member of that community did not have a reciprocal interest in receiving the information published to them by the defendants."

  1. Accordingly, his Honour found (at [80]-[81]) that the circumstances in which the matter was published, including its subject matter and the identity of the publisher and recipients, did not give rise to a reciprocal duty or interest in the publisher and recipients.

  1. The consequence of the primary judge's findings in relation to "The first question" was that he had concluded the article was not published on an occasion of qualified privilege at common law. That was sufficient to dispose of that defence: see e.g. Megna v Marshall at [175]. No doubt for more abundant caution, his Honour then considered what he said was "The second question": was the statement complained of sufficiently relevant, germane, or did it have a sufficient connection to "the occasion" for which the appellants contended? On this question (at [85]), he found that the defamatory statements about Ms Mundine's lack of competence as a mental health worker were "effectively qualitatively disconnected from the subject matter of the publication" and that "[i]t was not relevant, germane or sufficiently connected" to the subject matter or occasion of the article.

  1. Based on these findings, his Honour concluded that the defence of common law qualified privilege was not available because the publication was to the world at large and the appellants had not shown that there was a reciprocity of duty and interest between them and the receivers of the publication: primary judgment at [87].

Statutory qualified privilege

  1. The primary judge then turned his attention to the defence of statutory qualified privilege under s 30 of the Defamation Act observing (at [89]) that only Mr Brown addressed that issue, and then only in his oral submissions. This was not entirely correct as the newspaper did make brief oral submissions on the question. His Honour made the following relevant findings (at [99]-[100]):

(1)   the article was concerned with matters of public interest;

(2)   to the extent that it refers to her in particular, the article relates exclusively to Ms Mundine's performance of her public functions and activities;

(3)   no part of the article descends into criticism or abuse;

(4)   the defamatory imputation carried by the article was serious;

(5)   no steps were taken by the appellants to verify the information in the article;

(6)   the article appeared very close to the conclusion of the forum but there was no need for urgency. As such, further time could have been taken to examine the truth;

(7)   most significantly, the article did not contain Ms Mundine's side of the story and no attempt was made to obtain it;

(8)   no attempt has been made since to obtain or publish a response from Ms Mundine or the Aboriginal Medical Service on her behalf.

  1. Based on the above considerations, his Honour held (at [101]) that he was not satisfied that the conduct of the appellants was reasonable in the circumstances and, therefore, that they had not established a defence under s 30.

The appeal

Issues on the appeal

  1. In their Notices of Appeal, the appellants listed four grounds upon which they alleged that the primary judge erred:

(1)   in finding that there was no occasion of qualified privilege;

(2)   in awarding damages in respect of publications to persons who did not identify (and could not have identified) the respondent;

(3)   in the directions given in respect of identification; and

(4)   that the jury's determination that the imputation was published of and concerning the respondent was perverse and unreasonable.

  1. However, in their written and oral submissions, the appellants only addressed the first ground of appeal relating to the findings with respect to the defence of qualified privilege. It may be taken, as we said earlier, that the other grounds have been abandoned.

The appellants' submissions

  1. Mr Brown relied on the written submissions of the newspaper and his Summary of Argument filed on 7 March 2011 for the purposes of the leave application. He also made the following additional submissions relating to the statutory defence of qualified privilege. First, that the primary judge's reasoning that the article did not relate to an issue that required urgent examination was not consistent with the jury's finding that there was a mental heath crisis in the Clarence Valley. Secondly, the primary judge's finding that the appellants did not make a reasonable attempt to obtain Ms Mundine's side of the story could not be maintained for three reasons: Mr Brown did not intend to name Ms Mundine, nor did he have her in mind; Mr Brown was in no position to seek and publish Ms Mundine's views; and Mr Brown did contact the Chief Executive Officer of the Aboriginal Medical Service (Mr Scott Monaghan) and obtained his consent to the publication of the story, so long as no names were mentioned. Thirdly, Mr Brown argued that the primary judge erred in applying an equal standard of conduct to the newspaper and himself and that the evidence was clear that the article contained his genuine and bona fide statements that were made from first-hand experience.

  1. The newspaper submitted that the primary judge should have upheld both the common law and statutory defences of qualified privilege. It contended that his Honour erred in relation to his findings that the article was published to "the public at large". It submitted that the primary judge fell into error in finding that the fact that Ms Mundine was not named "makes no difference for the purposes of a defence of qualified privilege". In addition, the newspaper argued first, that his Honour's finding contravened the basic principle that in an identification case, publication takes place to a "necessarily limited number of readers": Rogers v Nationwide News Pty Ltd [2003] HCA 52; 216 CLR 327 at 354; that publication only occurs when the material is "available in comprehensible form": Dow Jones & Co Inc v Gutnick [2002] HCA 56; 210 CLR 575; and finally, that the article was only comprehensible to those recipients who could identify Ms Mundine. The newspaper therefore submitted that as a result, his Honour fell into further error because "the extent of a publication is always a relevant matter in determining whether the occasion was privileged": Bashford v Information Australia Pty Ltd at 402 per McHugh J; Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188 at 192-193 per Hunt J.

  1. In relation to the primary judge's finding on s 30 that the appellants' actions in not contacting Ms Mundine were unreasonable, the newspaper argued that if the article did not name her, and she was unknown to the publisher, then it could not be unreasonable not to contact her. Further, the fact that it was accepted that there was a mental health crisis amongst Aboriginals in the Clarence Valley meant that prompt publication was warranted.

  1. In oral submissions and contrary to the principal approach taken at trial, Mr Reynolds submitted first, that even if the article were published to the whole readership of the newspaper, this did not preclude a defence of common law qualified privilege. In particular, he argued that the facts brought this case within the species of cases described by McHugh J in Stephens v West Australian Newspapers Ltd [1994] HCA 45; 182 CLR 211 ("Stephens") at 265. Secondly, he argued that the newspaper had a defence in accordance with the House of Lords' decisions in Reynolds v Time Newspapers Ltd [1999] UKHL 45; [2001] 2 AC 127 ("Reynolds") and Jameel v Wall Street Journal Europe Sprl [2006] UKHL 44; [2007] 1 AC 359 ("Jameel"), and that the considerations in s 30(3) should be construed in the light of those decisions. Finally, in John Fairfax & Sons Ltd v Vilo [2001] NSWCA 290; 52 NSWLR 373, this Court held that Reynolds should not be followed in New South Wales. He submitted formally that Vilo was incorrectly decided.

Ms Mundine's submissions

  1. In response to the appellants' submissions, Mr Molomby submitted that the appellants' argument - that the primary judge erred in law in finding that the publication was to the general public - had no merit. This was because his Honour made that finding on a factual basis after considering the circumstances of the case. Further, Mr Molomby noted that the appellants had advanced a new case on appeal: that the publication went beyond the limited group for which they had argued at trial. They now contended that the publication to the "incidental recipients" did not destroy the defence of qualified privilege. However, Mr Molomby argued that the primary judge found that the recipients, other than the confined class for which the appellants contended, were not "incidental recipients". Rather, his Honour found that the publication was aimed at the general public among whom there were an indeterminate number of additional people whose knowledge enabled them to identify Ms Mundine from the article.

  1. In response to the appellants' submission that the Court should apply the approach of McHugh J in Stephens v West Australian Newspapers, Mr Molomby submitted that McHugh J's comments (at 263) only apply where "publication by newspaper or radio is the only reasonable mode of communication with the public". He further submitted that there was no evidence that communication of this issue to the recipients with an appropriate interest in receiving the information could not have been achieved by other means. As to the more general statement by McHugh J in Stephens (at 265), it was observed that his Honour was in the minority, that his statement had not been adopted by any other decision of the High Court and, in any event, was not applicable to the situation of Ms Mundine, as she was no more than an employee of a non-government organisation.

  1. In response to the newspaper's contention in relation to its s 30 defence that it did not know of Ms Mundine, Mr Molomby pointed out that her position was tied in with the AMS, and there was equally no attempt to obtain their side of the story. The call made by Mr Brown to contact the Mr Monaghan was not an attempt to obtain a response to the article because he was told nothing as to its content but, rather, was only told of its "very general theme".

  1. Mr Molomby next submitted that there was no evidence at trial as to the state of mind of the newspaper regarding the reliability of its source (Mr Brown), the truth of the content of the article or the importance of the issues it addressed. He also referred to the matters the jury found to be untrue (see primary judgment at [93]) as demonstrating that the appellants' conduct was unreasonable. Insofar as the appellants sought to rely upon Reynolds v Times Newspapers, Mr Molomby pointed out that the appellants did not plead or argue a defence based on that case at trial, nor was it raised in the unsuccessful leave application. To that extent, Ms Mundine was disadvantaged because the primary judge had not been required to, and did not, make any findings based on the test in that case.

Discussion and resolution - qualified privilege at common law

  1. We do not consider that there is any occasion in this judgment to repeat the origins and history of the common law treatment of qualified privilege in the law of defamation. Recent decisions of this Court are replete with statements of the relevant principles: Moit v Bristow at [73]-[79] per McColl JA with whom Beazley and Campbell JJA agreed; Lindholdt v Hyer [2008] NSWCA 264; 251 ALR 514 per McColl JA at [69]-[81]; Aktas v Westpac Banking Corp Ltd per McClellan CJ at CL with whom Ipp and Basten JJA agreed; and, most recently, Korean Times Pty Ltd v Pak [2011] NSWCA 365 per Nicholas J, with whom Beazley and Basten JJA agreed. Moreover, the primary judge, in a thorough judgment, gave great attention to the statement of those relevant principles and the citation of the relevant authorities which established them.

  1. It is sufficient, in our view, that brief reference be made first to the statements of principle appearing in Bashford v Information Australia. The principles are stated by the plurality (Gleeson CJ, Hayne and Heydon JJ) at [9]-[10]:

"[9] The principles to be applied in determining whether the occasion of publication of matter about which complaint is made was an occasion of qualified privilege are well known. The authorities that state those principles are equally well known. Frequent reference is made to the statement of Parke B in Toogood v Spyring:
'In general, an action lies for the malicious publication of statements which are false in fact, and injurious to the character of another (within the well-known limits as to verbal slander), and the law considers such publication as malicious, 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. In such cases, the occasion prevents the inference of malice, which the law draws from unauthorized communications, and affords a qualified defence depending upon the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits.'
Reciprocity of duty or interest is essential.
[10] These principles are stated at a very high level of abstraction and generality. 'The difficulty lies in applying the law to the circumstances of the particular case under consideration'. 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', 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 to and surrounding the publication'."

  1. It is advantageous to refer, in addition, to the remarks of Gummow J who agreed with the plurality that the appeal should be dismissed. In particular, his Honour said at [148]:

"The remaining element of the defence of qualified privilege arising out of a reciprocal duty or interest may be dealt with shortly. On the evidence before the primary judge, it is clear that the recipients of the defamatory imputation contained in the relevant article possessed a corresponding interest in the subject-matter to which the imputation related. In Howe & McColough, Higgins J noted:

  1. Mr Brown relied heavily on five factors. First, he did not intend to name Ms Mundine and did not have her in mind when he wrote the article. Secondly, he was in no position at any time to seek and have published by the newspaper Ms Mundine's side of the story. Thirdly, he did contact Mr Monaghan of the AMS and obtained his consent to the story so long as no individual was named. Fourthly, the same standard of conduct could not be attributed to Mr Brown as might be attributed to the newspaper. Fifthly, although the defamatory imputation found by the jury was unforeseen and unintended, the article contained Mr Brown's genuine and bona fide beliefs made from first hand experience.

  1. With respect to the third matter, Mr Brown's evidence was that in the previous week he had spoken to Mr Monaghan, Chief Executive Officer of the AMS at the time, informing him of the Aboriginal Services Provider Forum which was to take place in August. In his evidence in chief he said that at the conclusion of the Forum and after he had received from the newspaper's sub-editor the article proposed for publication, he spoke to Mr Monaghan by telephone to tell him that he was writing an article. However, in cross-examination he could not recollect whether he had that conversation with Mr Monaghan before or after the Forum. In fact he eventually agreed that it was at least a week to a week and a half before the Forum. When asked why he telephoned Mr Monaghan before the Forum he responded as follows:

"Well, Scott and I were in the process of, well, in discussion about forming partnerships to deal with the issues in the community because the ALS and the AMS should be working side by side. That wasn't happening so I rang Scott to tell him that I was thinking about doing an article and for him to take no offence to it because it had no - no intention to refer to any one organisation or any one person. It was to do with services in general."

  1. Mr Monaghan's evidence on this issue was slightly different. He agreed that he had a conversation with Mr Brown a week before the article was published. Mr Brown informed him that he was going to submit an article to the newspaper about Aboriginal services in the Clarence Valley, specifically the lack of such services. In that conversation he did not seek any information from Mr Monaghan with respect to the operation of the AMS, nor did he raise with him any complaint as to any defect in its operations. When asked what he said to Mr Brown he responded:

"My words were if the article was going to name a Service or any particular individuals he should be careful about the article itself because it could have repercussions on the community itself"

Mr Brown then responded that the article:

"... wouldn't name any Service and it was about services in general, not specific services." [Emphasis added]

  1. The two versions do not differ in so far as Mr Brown informed Mr Monaghan that the article was going to deal with "services in general". Either expressly (according to Mr Monaghan) or inferentially (on the basis of Mr Brown's evidence), the article was not going to refer to any specific services. However, it clearly did. Although the article contains some general assertions that local Aboriginal services were failing to meet their obligations, it is otherwise replete in its criticism of mental health services. Critically, the article stated:

"... visibility from the Aboriginal services dealing with these issues is almost non-existent. There is a growing perception that service workers are hiding behind their desks.
I have on many occasions tried desperately to engage mental health intervention in extreme circumstances, but to no avail.
...
I am sick and tired of being directed to use the Aboriginal workers attached to mental health and domestic violence services and not getting the information or assistance they need."

The reference to the "issues" which Mr Brown asserted to be "non-existent" was clearly a reference to issues dealing with mental illness in the local Aboriginal community and its link to domestic violence.

  1. In our view it is thus clear that, contrary to what Mr Brown told Mr Monaghan as to the limits of the article he was proposing, it did refer to "specific services" being the provision of mental health services. It was the workers who were supposed to be providing those services who were "hiding behind their desks". However, it was well known to Mr Brown that the only Aboriginal services that provided a mental health worker was the AMS and that that worker was Ms Mundine. In these circumstances, Mr Brown gains no comfort from the conversation that he had with Mr Monaghan.

  1. For the sake of completeness we note that in her oral submission on behalf of Mr Brown, Ms Wass stated, relevantly, that:

"... It was simply not his intention to unduly criticise organisations in particular when he saw it as a systematic problem. Certainly he's talking about mental health. That was the thing that concerned him at the Grafton forum. And to the extent that he thought that would necessarily implicate the AMS, because no doubt clearly they would be necessarily implicated. He spoke to Mr Monahan. And in accordance with what he'd promised, no service provider was mentioned by name."

The concession in the above statement was properly made.

  1. It thus follows from the foregoing that before he burst into print it behoved Mr Brown to verify his assertion in the article to the effect that the mental health workers engaged by the AMS were failing in their duty for that, in essence, was what the article alleged. Given his lack of knowledge of Ms Mundine's duties, including any restrictions under which the AMS may have been operating at the time, it would have been reasonable for Mr Brown to have at least enquired further of Mr Monaghan before he criticised the AMS as the only provider of mental health services to Aborigines in the Clarence Valley. If he had enquired he may have ascertained the lack of funding and staff which was affecting the AMS's operations, as was also properly conceded by Ms Wass.

  1. Although Mr Brown submitted that it was not his intention to name any particular Aboriginal service provider or any particular Aboriginal service worker, the article did not reflect that intention. There is no doubt that it emphasised a mental health crisis in the Clarence Valley. It must have been plain to the sub-editor of the newspaper, as well as to Mr Brown, that the article referred to those who were providing mental health services in the Clarence Valley. In particular, as Mr Brown intended to criticise the provision of such services, he approached Mr Monaghan of the AMS to obtain his consent to his writing the article. The only inference available is that Mr Brown was fully aware that the AMS provided the mental health services which he was about to criticise and that those services were provided at least by Ms Mundine who, it must be inferred, was one of the workers he had in mind as "hiding behind their desks".

  1. In these circumstances, it was clearly open to the primary judge to find that Mr Brown's conduct was unreasonable in not only failing to verify the information contained in the article but also in not attempting to ascertain from Mr Monaghan and Ms Mundine their response to the allegations contained in the article. For all he knew, there may have been justifiable reasons for the inadequacy of the provision of mental health services in the Clarence Valley.

  1. Finally, the appellants challenged the primary judge's finding that the article did not relate to an issue that required urgent examination. It was submitted that because it was acknowledged that there was a crisis in the provision of mental health services in the Clarence Valley, there was a necessity for the article to be published expeditiously and promptly. This urgency left no time or opportunity for either Mr Brown or the newspaper to verify the reasons for the crisis or to obtain the response to the allegations from either Mr Monaghan or Ms Mundine.

  1. That there was a crisis did not, in our view, relieve the appellants from the necessity to examine the veracity or otherwise of the matters raised in the article. It is apparent from the evidence that the crisis was not something which had suddenly occurred. It had been ongoing for some time, which was no doubt one of the reasons that eventually galvanised Mr Brown in "going public" on the issue. But there was no pressing necessity for publication to have taken place when it did. Another few days or a week would not have prejudiced the force of what Mr Brown wished to convey. Thus his Honour was correct in finding that further time could have been taken to examine the truth or otherwise of the matters raised in the article and, in particular, obtain a response from either or both Ms Mundine and Mr Monaghan to the allegations affecting them.

  1. In our view, therefore, it was clearly open to the primary judge to find that he was not satisfied that the conduct of the appellants in publishing the article was reasonable in the circumstances. Not only was it open to his Honour so to find, but in our view that finding was inevitable. Accordingly, the appellants' challenge to the rejection of their s 30 defence fails.

Extension of time

  1. We return now to consider the extension of time application made by each appellant pursuant to UCPR 51.9(1)(b), a Notice of Intention to Appeal having been filed in November 2010.

  1. The principles relevant to the applications are stated in the decision of this Court in Richards v Cornford (No 3) [2010] NSWCA 134, at [98]-[110]. Critically, at [98], "[t]he statutory framework for the exercise of the power and discretion to extend or not to extend time as sought in the motion is constituted by the CP Act, ss 5660". The facts in Richards v Cornford vary significantly from the present. There, the primary and instrumental course of the failure sought to be remedied by an extension of time was that of the client and not the solicitors. Nevertheless, the failure of the lawyers involved was a matter taken into account by the Court.

  1. For present purposes, however, the principles stated by the Court in Richards are relevant to the exercise of this Court's discretion. It is not necessary to repeat those principles, other than to stress, as we have observed, that the statutory framework is constituted by s 56 to s 60 of the Civil Procedure Act 2005. Further, the civil procedure legislation is to be read against the background of the modern approach to the proper despatch of litigation and the need for reasonable expedition referred to in Sali v SPC Ltd [1993] HCA 47; 67 ALJR 841, and Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175. Matters relevant to the exercise of discretion include the presence or absence of a satisfactory explanation for the delay; the question of prejudice to Ms Mundine; injustice to the appellants if the applications are refused, and, of course, the merits of the arguments involved in the appeals.

  1. We turn first to examine the reasons for the failure to file Notices of Appeal, and for the continued maintenance of the High Court special leave application. The evidential basis is somewhat scant. For the appellants, for example, there is no evidence from Ms Wass or, for that matter, from Mr Dawson. The precise reasons why experienced counsel did not advert to s 102 of the Supreme Court Act or to this Court's decision in Bennette v Cohen are not apparent. Nor is there any evidence to explain why it is that the application for special leave to the High Court is still being pursued. While it might be inferred that the reason concerns an element of insurance to cover the eventuality that an extension of time is not granted in these proceedings, there is no evidence to satisfactorily explain the unusual situation of the maintenance of High Court proceedings in the face of the concession to this Court that the leave application was inappropriate. Their maintenance has left an unnecessary sword of Damocles hanging over Ms Mundine's head, a relevant aspect to consider in the extension application: see Aon Risk Services Australia Ltd v Australian National University at [100] per French CJ.

  1. The evidence as to Ms Mundine's present situation is also scant. There is, for example, no evidence from her pointing to any particular degree of financial hardship arising from the fact that the verdict has not been paid or otherwise.

  1. Nevertheless, we consider that there is ample justification to conclude that Ms Mundine will be prejudiced if the applications are granted. This arises from the fact particularly that she has been required to face the stress and anxiety of a leave application which was unnecessary, and that she still faces the prospect of this appeal and the unresolved extant proceedings in the High Court. It is not insignificant to note that the application for special leave seeks to challenge not only the primary judge's findings on the issue of qualified privilege. It also seeks to overturn the assessment of damages, a matter not pursued in this Court. We are entitled to take into account that Ms Mundine is an Aboriginal woman and probably a person of reasonably limited means. It is now nearly four years since the publication of the article in the newspaper. Damages were awarded in Ms Mundine's favour as long ago as 5 November 2010. The Notices of Appeal were not filed until June 2011. They were approximately four months out of time, if one does not consider (as might be thought to be the case) that the Notice of Intention to Appeal was superseded by the filing of the albeit otiose application for leave to appeal, in which case the delay was approximately seven months. Either way, the delay is egregious. If allowed to continue, the litigation has the capacity to linger throughout 2012 and perhaps beyond. We consider that there is undoubted prejudice to Ms Mundine. We also consider that costs orders made to date in her favour and protection against the overturning of costs orders (as foreshadowed by Mr Reynolds in his submission) is not a sufficient answer to the prejudice we have described.

  1. We bear in mind, of course, that if the extensions of time are not granted, prejudice will be sustained by Mr Brown and by the newspaper. We acknowledge that neither Mr Brown nor the newspaper were personally at fault in the situation where the appropriate relief was not sought following the decision of the primary judge. In that regard, responsibility must be sheeted home to the lawyers concerned. However, that fact of itself cannot constitute an impenetrable bar to the making of an order refusing an application for an extension of time: Martin v The Nominal Defendant (1954) 74 WN (NSW) 121, per Walsh J; Witten v Lombard Australia Ltd (1968) 88 WN (Pt 1) (NSW) 405 at 411-412; Stollznow v Calvert [1980] 2 NSWLR 749 at 752; Sophron v Nominal Defendant (1957) 96 CLR 469 at 474.

  1. In the case of the newspaper, it may be properly inferred that it is one of the leading local newspapers in New South Wales and its ownership is a matter of public record and knowledge. Its financial standing and commercial situation bear no comparison to the situation of Ms Mundine. On the other hand, Mr Brown is an Aboriginal elder and we have no reason to suppose that he is a person of financial substance. We acknowledge that a refusal to extend time will occasion an undoubted prejudice to both Mr Brown and the newspaper. It must be, however, that, in a situation such as the present, it may be necessary for the Court to make a decision which is capable of producing a sense of injustice in one party for the sake of doing justice to the other. Although it is a matter of fine balance, we incline to the view that, although not determinative in itself, the prejudice to be sustained by Ms Mundine if the applications to extend time are granted outweighs the prejudice that would be sustained by Mr Brown and the newspaper if their applications were refused.

  1. It is necessary, however, to add into the mix of relevant considerations the fact that, in our view, the arguments advanced in support of the appeals are without merit. We do not consider, contrary to Mr Reynolds' submissions, that any matter of general principle has been identified. Rather, as this Court determined on the leave application, the case turns, as is so often the situation, essentially upon the facts and circumstances which were examined in careful and thorough detail by the primary judge. We see no reason, as we have said, to differ from the views and findings he ultimately reached. Further, it is significant, in our view, that the appellants seek to advance a new case on appeal. The newspaper only advanced brief oral submissions at trial in relation to s 30, more or less an afterthought, whereas it now seeks to found one of its two principal arguments on the defence provided by that section.

  1. In our view, balancing all the factors, the applications for extensions of time should be refused.

  1. Accordingly, we make the following orders:

(1)   Refuse the appellants' applications for an extension of time to file their Notices of Appeal.

(2)   Appellants to pay the respondent's costs of the applications to extend time and of hearing of the appeal proceedings generally.

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Decision last updated: 28 June 2012

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Cases Cited

23

Statutory Material Cited

5

Mundine v Brown (No 6) [2010] NSWSC 1285
Mundine v Brown (No 7) [2011] NSWSC 170
Daily Examiner Pty Ltd v Mundine [2011] NSWCA 126