Marsden v Amalgamated Television Services Pty Limited

[2000] NSWSC 280

CITATION:

Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 280 revised - 10/04/2000

FILE NUMBER(S):

SC 20223 of 1995; 20592 of 1996

HEARING DATE(S):

3 April 2000

JUDGMENT DATE:

3 April 2000

PARTIES :

JOHN MARSDEN

v

AMALGAMATED TELEVISION SERVICES PTY LIMITED

JUDGMENT OF:

Levine J at 1

COUNSEL :	I Barker QC M R Hall (Plaintiff) W H Nicholas QC J S Wheelhouse (Defendant)
SOLICITORS:	Phillips Fox (Plaintiff) Mallesons Stephen Jaques (Defendant)
CATCHWORDS:	Admissibility - relevance - qualified privilege - common law - s22 Defamation Act - Lange defendant - matter complained - imputations - information - belief in truths - T5128.
LEGISLATION CITED:	Defamation Act, 1974.
CASES CITED:	Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; Morgan v John Fairfax & Sons Ltd [No.2] (1991) 23 NSWLR 344; Austin v Mirror Newspapers Limited (1985) 3 NSWLR 354.
DECISION:	See paragraph 28.

DLJT: 131
(Ex Tempore - Revised)
[2000] NSWSC 280

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

No. 20223 of 1995
No. 20592 of 1996

JUSTICE DAVID LEVINE

MONDAY 3 APRIL 2000

JOHN MARSDEN
(Plaintiff)

v

AMALGAMATED TELEVISION SERVICES PTY LIMITED
ACN 000 145 246
(Defendant)

JUDGMENT - (Admissibility - relevance - qualified privilege - common law - s22 Defamation Act, 1974 - Lange defence - matter complained - imputations - information - belief in truths - T5128)

1    HIS HONOUR: At present giving evidence is Mr Alan Hall, called by the defendant in relation to its defence of qualified privilege, and as I presently understand it, in respect to the “Today Tonight” programme telecast on 13 March 1995 (the first matter complained of, Exh A). 2    The defence of qualified privilege upon which the defendant relies has been the subject of particularisation commencing with a request for particulars from the plaintiff's solicitors to the defendant’s solicitors on 10 August 1998 generating a response of 2 October 1998. Further communications are constituted by: a letter dated 29 January 1999; a document in relation to the first action “Consolidated Particulars of Qualified Privilege” dated 30 March this year which in point of time succeeded an earlier communication being a letter dated 22 March from the defendant’s solicitors to the plaintiffs solicitors. 3 The defence of privilege as I understand the particulars to which I have had access may be described as being founded upon three bases: The defence as provided by s22 of the Defamation Act, the defence as provided at common law and that defence provided for as flowing from the decision of the High Court in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. 4 The consolidated particulars of qualified privilege in paragraph 5 on page 3 state the following:

“The conduct of the defendant in publishing the matter complained of was reasonable in the circumstances in that (a) the defendant had the information set out in paragraph 8 below which related to the imputations carried upon upon which (scil. Information) it was reasonable for it to rely in publishing the imputations ...”

5    That paragraph 5 is under that component of the defence (A) dealing with common law privilege in the traditional sense, the Lange sense and s22. 6 Paragraph 7 of the particulars, commencing on page 4, particularises the defence provided by s22 of the Act. 7 It opens with the words "The publication of the matter complained of occurred on an occasion of qualified privilege pursuant to s22 of the Act by reason of the following facts and matters ... ”. Subparagraph (4) asserts that the conduct of the defendant in publishing the matter complained of was reasonable in the circumstances particularly ((4)(a)) by reason that the defendant had the “information” set out in paragraph 8 (pages 5-15). 8    What has generated the particular objection is a question (T5116.45) asked of Mr Hall in relation to a meeting on 20 January 1995 at a coffee shop in Macleay Street, attended by Mr Hall, Mr Quail and a journalist Mr Hicks. As I understand it, Mr Hicks provided to Mr Hall a document (being that behind tab 6 in the defendant’s tender bundle, a fingerprint report). It was tendered and objection taken. 9    The objection was taken on the basis that in the context of the defence of privilege the document was irrelevant and being irrelevant it was inadmissible. 10    For the defendant, it is submitted that the notion of “reasonableness” attending the s22 defence and not excluding, as I understand it the Lange defence, involves a consideration of those factors the information the defendant had, the quality of it and the relationship between that information and the state of the mind of the defendant in relation to, as a matter of principle, the belief held as to the truth of the imputations in fact carried, the absence of knowledge of falsity thereof, and the defendant not believing the matter complained of to be untrue. 11    At this point it can be seen that the train of relevance is pointing to various available destinations which embrace the matter complained of as published and the imputations as conveyed and, as mentioned by Mr Nicholas in submissions as a matter of principle, imputations intended to be conveyed but in fact not found to be conveyed and the defendant's state of mind in regard to them. All of which, it is said would provide a foundation for the ultimate decision of the Court as to the “reasonableness” of the defendant’s conduct. The reasonableness of the defendant’s conduct is not tied, either as a matter of commonsense, principle or authority, solely to imputations in fact found. The evidence must be relevant to the factors to which I have referred and thus admissible. 12 For the plaintiff it is contended that there exists that tie being a rational connection between reasonableness of conduct and the imputation found. That tie must circumscribe the extent of the information available to the defendant in terms of its reliance upon it to found a belief in the truth of the found imputations. In other words there must be a rational connection between the information, the belief, and the imputation that must be tested at the point of tender of the evidence in respect of the subject piece of information. 13 It is also argued, and it is put in this way, that the plaintiff cannot understand why the defendant does not inform him as to its relevance. Dealing with this submission first: the plaintiff is informed of relevance by reason of the particulars provided. It is informed of relevance by the identification of the information; and it is informed of relevance by the provision of particulars as to, for example, the belief held by the defendant in the publication of the matter complained of founded upon that information. It is further informed that the belief, for example, of the defendant on that information relates to the imputations and matters complained of as published. 14 If it were the case, and I am not persuaded that it is, that the defence of qualified privilege under s22 of the Act can only operate vis a vis the imputations in fact found, then the first basis of the plaintiff’s objection would have some merit. I do not consider, however, s22 to be so circumscribed for two reasons. 15 One is historical. The defence of qualified privilege is founded historically on the “occasion” on which matter is published. That occasion in one other area may be “absolutely” protected. In the relevant area, the publication historically has been protected with the qualification - hence “qualified” - that the occasion is not abused or the publication on it is not actuated by malice. The strict approach in the submissions for the plaintiff would bring it about that s22, despite its wording (s22(1)(c)) as to reasonable in the circumstances, is not attached to the “occasion” of the publication of the “matter” (see s22(1) “matter published”) consequently complained of, but will only succeed or fail, in terms of reasonableness, vis a vis the imputations found to have been carried by the matter complained of. 16 I do not understand it to have been decided that the s22 defence is so limited. 17 In the circumstances I will refer to two authorities. 18 The first is Morgan v John Fairfax & Sons Ltd [No.2] (1991) 23 NSWLR 344. Hunt AJA at pages 382A-388F discusses the requirements for the litigation and proof of the defence under s22. What his Honour there said had most usefully, by the editors of the report, been summarised as follows in the head note.:

“When considering whether a defendant has established the defence of statutory qualified privilege, and in particular the requirement that his conduct in publishing the matter complained of was reasonable in the circumstances under the Defamation Act 1974, s22(1)(c), he must prove:
(i) that his conduct was reasonable in the circumstances in relation to each imputation found to have been in fact conveyed by the matter complained of;
(ii) that (except in certain circumstances) if he intended to convey any imputation so conveyed, he believed in the truth of that imputation;
(iii) that, if he did not intend to convey any imputation in fact conveyed:
(a) (except in the same circumstances), he believed in the truth of each imputation which he did intend to convey, and
(b) his conduct was nevertheless reasonable in the circumstances in relation to each imputation which he did not intend to convey but which was in fact conveyed; and
(iv) that
(a) before publishing the matter complained of, he exercised reasonable care to ensure that he got his conclusions right, by making proper inquiries and (where appropriate) checking on the accuracy of his sources,
(b) his conclusions (whether statements of fact or expressions of opinion) followed logically, fairly and reasonably from the information which he had obtained,
(c) the manner and extent of the publication did not exceed what was reasonably required in the circumstances, and
(d) each imputation intended to be conveyed was relevant to the subject about which he was giving information to his readers.”

19    That “the matter complained of” and the circumstances of its publication as distinct, but not necessarily detached, from imputations found (or intended or not intended to be published by the defendant) is clear from the passages giving rise to the above extract. The more so does that component of the defence referred to in (iv) above make that clear in the light of his Honour’s remarks at page 390B:

“The defence of statutory qualified privilege is not pleaded to the publication of the imputations, as are the defences of truth and contextual truth; it is pleaded to the publication of the matter complained of. However, that does not mean that the imputations in fact conveyed by the matter complained of are irrelevant to a consideration of one ingredient of that defence - the reasonableness of the defendant's conduct in publishing the matter complained of, as the earlier authorities in relation to s22(1)(c) have made clear.“

20    Clearly the information in the possession of the defendant and the use made of it by the defendant for the publication of the matter complained of will relate and be relevant to the defendant’s state of mind and conduct vis a vis the imputations in fact found. 21    Information, by itself, not readily apparent as relevant to or relating to a found imputation may by itself or with other information be relevant to the belief of the defendant in the truth of the imputations at the time of publishing the matter complained of, to whether or not the defendant was unaware of the falsity of the imputations, to whether or not the defendant did not believe the matter complained of to be untrue, and to whether or not the defendant intended to convey other imputations not in fact found (see Hunt AJA in Morgan at 387B discussing Austin v Mirror Newspapers Limited (1985) 3 NSWLR 354 at 362). 22 The second basis for my being of the view that the strict constraint on the operation of s22 (or the Lange defence) is insofar as it involves “reasonableness” is a statement in the joint judgment in the High Court in Lange at page 573:

“Reasonableness of conduct is the basic criterion in s 22 of the Defamation Act which gives a statutory defence of qualified privilege ... And it was the test of reasonableness that was invoked in the joint judgment in Theophanous ((1994) 182 CLR 104 at 136-137). Given these considerations and given, also, that the requirement of honesty of purpose was developed in relation to more limited publications, reasonableness of conduct seems the appropriate criterion to apply when the occasion of the publication of defamatory matter is said to be an occasion of qualified privilege solely by reason of the relevance of the matter published to the discussion of government or political matters. But reasonableness of conduct is imported as an element only when the extended category of qualified privilege is invoked to protect a publication that would otherwise be held to have been made to too wide an audience. For example, reasonableness of conduct is not an element of that qualified privilege which protects a member of the public who makes a complaint to a Minister concerning the administration of his or her department. Reasonableness of conduct is an element for the judge to consider only when a publication concerning a government or political matter is made in circumstances that, under the English common law, would have failed to attract a defence of qualified privilege ...
The defendant must establish that its conduct in making the publication was reasonable in all the circumstances of the case. In all but exceptional cases, the proof of reasonableness will fail as a matter of fact unless the publisher establishes that it was unaware of the falsity of the matter and did not act recklessly in making the publication.”

23    Even taking into account the loftier levels of a constitutional nature with which their Honours were concerned, what is there said is illustrative of the fundamentals of the defence involving not merely and exclusively imputations in fact found but the matter published which conveys them and the occasion of it. 24    The exercise is concerned with the publication of the matter complained of which at a point of time is or has been found to carry imputations. In that context the real basis is to determine the issues of reasonableness in relation to the matter as published conveying those imputations and involves the weighing of that information in the possession of the defendant vis a vis the reasonableness of the publication of the matter complained of and the belief held by the defendant vis a vis imputations in fact found. 25    The ambit of relevance is therefore very wide in my view. It may be in the end that a particular piece of information, on no rational basis, is available for that weighing exercise because of its total lack of relevance, because other evidence points to it receiving improper or irrelevant weight or attention and it may be the case that it could not reasonably have founded any belief and so on. 26    Here, at the point of tender, I am concerned with admissibility and thus relevance. I am not concerned with ultimate proof of the defence. 27    The information that the defendant has particularised that it possessed can be the subject of evidence of the fact of it having the information and, to put it shortly, the uses made of it - that being relevant to the issue of reasonableness in terms of the publication of the matter complained of and in so far as it may turn out in the end be relevant to the determination of any belief in relation to imputations in fact conveyed. 28    I admit the document as Exhibit 100.

Last Modified: 09/25/2000