COUNSEL: A: T D Blackburn SC / S Chrysanthou R: B R McClintock SC / R K Weaver
SOLICITORS: A: Ferrier & Associates, Sydney R: Maurice Blackburn Cashman, Sydney
CATCHWORDS: DEFAMATION – privilege – qualified privilege – statements made in respect of a duty or interest – on matters of public interest – what constitutes privileged occasion, communication or conduct – whether the occasion of a communication between a candidate and a non-candidate who had expressed contrary political views in the context of an election campaign attracts qualified privilege – whether an ulterior motive of a non-candidate for campaigning against a candidate is relevant to the occasion of qualified privilege – rebuttal of privilege by malice – whether recklessness without evidence of wilful blindness is sufficient to establish that a publication is actuated by malice fair comment – foundation of fact
DECISION: (a) Appeal allowed (b) Set aside the orders made by Simpson J on 12 June 2008 (c) The proceedings be dismissed (d) The respondent to pay the appellant's costs of the proceedings and of the appeal but to have with respect to the latter a certificate under the Suitors' Fund Act 195, if otherwise qualified
JUDGMENT:
IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL
CA 40201/08
TOBIAS JA McCOLL JA BASTEN JA
Thursday 5 March 2009
ANDREW FRASER v BRETT HOLMES
Judgment
TOBIAS JA: By his further Amended Statement of Claim filed on 25 June 2007, the respondent, Mr Brett Holmes, the General Secretary of the New South Wales Nurses Association (the Association), claimed damages in defamation against the appellant, Mr Andrew Fraser, a sitting member…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Fraser v Holmes [2009] NSWCA 36
Case
[2009] NSWCA 36
Decision Date
CaseChat Overview and Summary
The appeal concerned a defamation claim brought by Brett Holmes, the General Secretary of the NSW Nurses Association, against Andrew Fraser MP, a member of the NSW Parliament. The dispute arose from a letter sent by Mr. Fraser to 629 nurses in his electorate shortly before the 2007 NSW state election. The letter addressed concerns about industrial relations policies and the potential impact on nurses, but a specific paragraph was complained of as defamatory. The matter was heard in the Court of Appeal of the Supreme Court of New South Wales.
The primary legal issues before the Court of Appeal were whether the occasion of the communication between Mr. Fraser and the nurses attracted qualified privilege, and if so, whether that privilege was defeated by malice. Specifically, the court had to determine if an ulterior motive of Mr. Fraser in campaigning against the incumbent Labor government was relevant to the occasion of qualified privilege, and whether recklessness, without evidence of wilful blindness, was sufficient to establish malice.
The Court of Appeal found that while the occasion of the communication was indeed one of qualified privilege, the primary judge had erred in concluding that this defence was defeated by malice. The court applied principles from established case law, including *Roberts v Bass*, to the effect that recklessness alone, short of wilful blindness, is insufficient to destroy qualified privilege. It was held that for recklessness to defeat the privilege, it must be accompanied by other evidence demonstrating an improper motive or actuated by malice. In this instance, the court determined that the evidence did not support a finding of malice.
Consequently, the Court of Appeal allowed the appeal, set aside the orders made by the primary judge, and dismissed the proceedings. The respondent was ordered to pay the appellant's costs of the proceedings and the appeal, with a potential certificate under the Suitors' Fund Act 1951.
Orders
Orders of the court
(a) Appeal allowed (b) Set aside the orders made by Simpson J on 12 June 2008 (c) The proceedings be dismissed (d) The respondent to pay the appellant's costs of the proceedings and of the appeal but to have with respect to the latter a certificate under the Suitors' Fund Act 195, if otherwise qualified
Background
Background to the litigation
The summons for leave to appeal and the appeal were heard concurrently. At the conclusion of oral argument, the Court granted the appellant leave to appeal. Accordingly, the reasons that follow deal with the matter on that basis. The background to the publication of the letter As I have indicated, the respondent was at all material times the General Secretary of the Association. The appellant was at all material times a member of the NSW Parliament representing the Coffs Harbour electorate. He held that seat as a member of the National Party which was, at all material times, in opposition and in a coalition with the Liberal Party. The general election for the NSW Parliament took place on 24 March 2007. As her Honour recorded (at [3]), in the weeks preceding that date a campaign was underway which included debate over a highly contentious political issue concerning the then Federal Government’s industrial relations policies. The governing council of the Association perceived, rightly or wrongly, that the interests of its members stood to be adversely affected if the Coalition was elected to office in NSW as it feared that a State coalition government would refer to the Federal Government and therefore, to its industrial relations regime, coverage of NSW nurses employed in the State’s public health system. Accordingly, the Association struck a levy on its members and embarked upon an extensive and expensive publicity campaign, the purpose and effect of which was to urge support for the re-election of the existing State Labor government. The matter complained of As I have noted above, the respondent’s claim arose out of the letter directed by the appellant to 629 residents in his Coffs Harbour electorate who identified their occupation as that of nursing. The letter was dated 15 March 2007 – nine days before the election date. According to her Honour (at [6]), it was not disputed that the letter was designed to generate support for the appellant’s re-election to the NSW Parliament by countering the expressed fears of the Association and assuring its recipients that, if elected, a State coalition government would not refer power to the Commonwealth to allow the application of federal legislation to the detriment of members of the nursing profession. Much of the letter was directed to that issue and was not the subject of complaint. However the third paragraph of the letter constituted the matter complained of (paragraph 3). In order to put it into context, I set out the whole of the letter, emphasising that which constitutes the matter complained of:“ANDREW FRASER MPState Member for Coffs Harbour15 March 2007Dear Further to my recent letter, I am writing to express my disappointment that nurses are funding a campaign to have Labor re-elected in NSW.I am disappointed and surprised, because over the last 12 years of a Labor Government, as your State MP, I have fielded hundreds of calls from angry and frustrated nurses about the state of our hospitals and the conditions under which you have to work. I have always done what I can to support nurses and local hospitals so I am disappointed to see nurses now campaigning against me.As to the real reason why the Association is running this campaign I am led to believe that your General Secretary, Brett Holmes is seeking preselection in the safe Labor seat of Fowler at the next Federal election and that this is his contribution to the Labor Party. I find it appalling that he is using his position and your subs to promote his political career. $1m on this campaign is $1m less the Association has to genuinely help nurses.I know that nurses are nervous about Work Choices but the High Court has ruled that the Commonwealth has the power to make these changes so all we can do is protect state employees, which is what we have done. As you are State employees, the Federal Government cannot take you over without a State referral and WE WILL NOT BE MAKING THAT REFERRAL.Thus you may be assured that nurses, teachers, police and others working in professions covered by State Awards, will not be affected by the Federal Industrial Relations Changes.The NSW Liberal/Nationals have always supported nurses remaining under the state award with all conditions and penalties being GUARANTEED. Peter Debnam and Jillian Skinner have continually reinforced this message but your leadership has been reluctant to provide that information to its membership.I also ask that when you go to vote that you remember the harm that Labor has done to nursing in the last 12 years. Nurses have been leaving the profession in large numbers because of their working conditions. The public have little confidence in the health system and nurses are unfortunately facing the brunt of that anger with some of that anger being Association wishes to re-elect, savagely cut your access to common Law Workers Comp rights in 2002. Morris Iemma was a senior Minister at the time and voted in favour of those savage cuts. Given all that, I find it astounding that nurses would want to see this Government re-elected.I hope that you see this campaign by the Nurses Association for what it is and make your own informed decision on Election Day. I make the commitment to you as your local member that we will not be referring IR powers over nurses to the Commonwealth and that we will be protecting your current work conditions. But on top of that we will also improve the health System and improve your working conditions.If Labor is re-elected the only thing you can be guaranteed, is that nothing will change.I have had discussions with nurses at the hospital who advised me that, ‘…things at the hospital are much worse tha[n] you even think they are and they are getting worse every day’.Given that admission, I can’t believe any nurse would want to see Labor re-elected.For your information I have enclosed a copy of a media release issued by the Shadow Minister for Health, Jillian Skinner, in which she outlines the details of the Coalition’s Police to employ more nurses, so as to ease the workload you are currently burdened with. I hope you will be able to find the time to read this information so that you can make an informed choice at the NSW State election being held on 24 March.Yours sincerelyMember for Coffs HarbourShadow Minister for Small BusinessShadow Minister for Forestry” (Emphasis added)
Evidence
Evidence Before The Court
In Gross v Weston, Hunt AJA (at [52]) expressed the view that the joint judgment in Roberts was, relevantly, authority for the following propositions: “(1)Except where the defendant was under a legal duty to publish the matter complained of, the defendant’s knowledge that it was false is ordinarily conclusive evidence that the publication was actuated by an improper motive. (2)Recklessness in the publication of the matter complained of does not establish knowledge of its falsity unless it amounts to wilful blindness on the part of the defendant which the law equates with knowledge.(3)Recklessness — when present with other evidence — may nevertheless be relevant to whether the defendant had an improper motive which actuated the publication.(4)If a plaintiff’s case rises no higher than evidence that the defendant did not have a positive belief in the truth of what he published, there is no evidence that its publication was actuated by an improper motive. (5)The absence of a positive belief in the truth of what was published may nevertheless be relevant — with other evidence — to whether the defendant’s improper motive actuated the publication, but it will not establish that fact by itself.” (Emphasis added) Hunt AJA, prior to stating the above propositions had, relevantly to the present case, made the following observations under the heading “Recklessness/wilful blindness”: “42Recklessness, short of a wilful blindness, is not enough to destroy the defence of qualified privilege: [87](3). In exceptional circumstances, the sheer recklessness of the defendant in making the defamatory statement may justify a finding of malice [improper motive]: [84](1), [98](1). The defendant's conduct may be so gross as to constitute wilful blindness, which the law will treated as equivalent to knowledge: [84](3). 43In less extreme cases, recklessness — when present with other factors — may be cogent evidence that the defendant used the occasion for some improper motive: [84](2), [84](4). This is particularly so when the recklessness is associated with unreasoning prejudice on the part of the defendant: [84](5).” (emphasis added)The citations referred to in the above paragraphs relate to paragraphs previously cited by his Honour from the joint judgment in Roberts v Bass. For example, their Honours in their joint judgment in Roberts (at [87]) relevantly observed:“A person who is reckless as to whether the statement is true or false has no positive belief in the truth of the statement. Yet as the above statements of Lord Esher MR in Royal Aquarium and Clark show, recklessness, short of wilful blindness, is not enough to destroy the privilege. It must be accompanied by some other state of mind. Where that is so, the recklessness is evidence that the publication was actuated by the accompanying state of mind, be it anger, hatred, bias or unreasoning prejudice.” In Lindholt McColl JA (at [141]) observed, in my opinion, correctly: “Recklessness will only destroy qualified privilege by itself if it amounts to wilful blindness. In less extreme cases, recklessness in combination with other factors may provide cogent evidence that the defendant was acting for an improper purpose, especially where the recklessness is associated with unreasoning prejudice: Roberts v Bass (at [84]–[86]) per Gaudron, McHugh and Gummow JJ. Recklessness is to be distinguished from mere carelessness, impulsiveness or irrationality in arriving at a positive belief that the defamatory matter is true: Horrocks (at 150) per Diplock LJ.”
Decision
Reasons for decision
Equally, it is unnecessary to consider the contention of the respondent that s 31(5)(b) of the 2005 Act does not apply to material published on the same occasion as the expression of opinion but only to material published on a different occasion under qualified privilege. That provision also raises the question of whether it applies in circumstances where, at least in the case of qualified privilege, that privilege has been defeated by a finding of malice. Of course the answer to that question may well depend upon the answer to the contention raised by the respondent. Conclusion It follows from the foregoing that although her Honour was correct to find that the matter complained of was published on an occasion of qualified privilege, she erred in finding that that defence was defeated by her finding of malice. This being so, the defence of qualified privilege at common law succeeds and is a complete answer to the respondent’s claim. The appeal therefore succeeds. I would therefore propose the following orders: McCOLL JA: I agree with Tobias JA. BASTEN JA: I agree with the orders proposed by Tobias JA and with his Honour's reasons.**********