Mather v Smith (No 1)

In Mather v Smith (No 1), the respondent, Smith, sued the applicant, Mather, for defamation over statements made during a radio interview. The primary judge had determined that there was no determination by the jury regarding the defence of common law qualified privilege, as the jury had not been asked if the audience to whom the imputations were published was too wide. Consequently, the primary judge proceeded to make findings of fact and ruled that the defence of qualified privilege should fail. Mather contended that the jury's answers established qualified privilege, as Smith had not argued that the publication was too wide. The court had to determine if the extent of the publication affected the common law qualified privilege.

The court examined the roles of the judge and the jury in defamation cases involving qualified privilege. The trial judge had posed numerous questions to the jury regarding the defence of qualified privilege. However, the primary judge found that the jury had not made any determination on this defence. Since the jury had already been discharged, the primary judge proceeded to make necessary findings of fact to decide the defence of qualified privilege. The court needed to assess whether the trial judge erred in undertaking this fact-finding exercise and deciding whether the publication was protected by qualified privilege.

The court held that the primary judge did not err in making findings of fact and deciding the defence of qualified privilege. The court found that the trial judge correctly determined that the defence of qualified privilege failed. The court further held that the extent of the publication did not affect the common law qualified privilege, even if some of the audience did not have a legitimate interest in hearing the information. Therefore, the court dismissed the appeal, granting leave to appeal but ordering the applicant to pay the respondent's costs of the application and the appeal.