GLEESON CJ, GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ
GEOFFREY MARK ROBERTS & ANOR APPELLANTS
AND
RODNEY PIERS BASS RESPONDENT
Roberts v Bass [2002] HCA 57
12 December 2002 A37/2001
ORDER
1. Appeal allowed with costs.
2.Set aside the orders of the Full Court of the Supreme Court of South Australia dated 8 September 2000 and in place thereof order that:
(a)the appeal to that Court is allowed with costs;
(b)the judgment of the District Court of South Australia dated 24 March 2000 is set aside and in its place:
(i)there be judgment for the second-named appellant, Kenneth Allan Case, with costs; and
(ii)there be a new trial of the action against the first-named appellant, Geoffrey Mark Roberts, the costs of the first trial of the action against Mr Roberts to abide the result of the new trial.
On appeal from the Supreme Court of South Australia
Representation:
S M Littlemore QC with P A Heywood-Smith for the appellants (instructed by David Wilson)
D A Trim QC with N J T Swan and H M Heuzenroeder for the respondent (instructed by Lempriere Abbott McLeod)
Intervener:
R J Meadows QC, Solicitor-General for the State of Western Australia with R M Mitchell intervening on behalf of the Attorney-General for the State of Western Australia (instructed by Crown Solicitor for the State of Western Australia)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Roberts v Bass
Defamation – Defences – Qualified privilege – State election – Publication of electoral material – Reciprocity of interest – Proof of malice – Improper motive – Whether intention to cause political damage constitutes an improper motive – Relevance of honest belief in truth of statement – Relevance of reckless indifference to truth or falsity of published material – Relevance of knowledge of falsity of published material – Relationship of common law qualified privilege to extended qualified privilege as identified in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.
Constitutional law (Cth) – Implied limitation upon laws restricting freedom of expression concerning governmental and political matters – Whether constitutional question arises having regard to issues before the State trial and appellate courts – Whether constitutional implication may be disregarded – Whether general common law relating to the occasion of qualified privilege is compatible with the Constitution – Whether general common law relating to malice is compatible with the Constitution – Whether common law needs to be developed to ensure compatibility – Ingredients of malice in the circumstances of the case – Whether malice established in communications published in a State electoral campaign.
Words and phrases – "malice".
GLEESON CJ. The appellants were found at trial to have injured the respondent by the publication of false and defamatory matter in the course of a State election in South Australia, and ordered to pay damages. The decision of the trial judge was upheld by the Full Court of…
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
Roberts v Bass [2002] HCA 57
Case
[2002] HCA 57
Decision Date
CaseChat Overview and Summary
Geoffrey Roberts and Kenneth Case appealed to the High Court of Australia against an order of the Full Court of the Supreme Court of South Australia, which had dismissed their appeal against an award of damages for defamation. The respondent, Rodney Bass, had sued Roberts for defamatory publications made during a South Australian state election campaign, and Bass also sued Case for defamation in relation to one of those publications. The defamation law applied was the common law, not South Australian statute. At the time of publication, Bass was the sitting Member for Florey, and Roberts and Case were electors who opposed Bass's re-election.
The High Court was required to determine whether the evidence supported the findings of malice made by the trial judge and the Full Court, and if so, whether those findings constituted malice for the purposes of qualified privilege in the context of an electoral campaign. Additionally, the Court considered whether the parties could alter their positions from the Full Court regarding the availability of qualified privilege, specifically whether the occasions of publication were privileged and whether the extended qualified privilege recognised in *Lange v Australian Broadcasting Corporation* applied.
The Court reasoned that the evidence did not establish that Case was recklessly indifferent to the truth or falsity of the material he published. It was held that, given the context of an election campaign and the apparent content of the publication, Case's failure to make further inquiries, beyond those concerning the Modbury Hospital, did not amount to reckless indifference. Consequently, his lack of a positive belief in the truth of the material was not, in itself, evidence of malice. The Court also considered the relationship between common law qualified privilege and the extended qualified privilege established in *Lange*, and the ingredients of malice in the context of electoral communications.
The High Court allowed the appeal in part. It dismissed Roberts' appeal but allowed Case's appeal, setting aside the orders of the Full Court of the Supreme Court of South Australia. The Court ordered that Case's appeal to the Full Court be allowed with costs, that the judgment against him in the District Court be set aside, and that judgment be entered for Case with costs. A new trial was ordered for the action against Roberts, with the costs of the first trial to abide the result of the new trial.
Orders
Orders of the court
1. Appeal allowed with costs.
2. Set aside the orders of the Full Court of the Supreme Court of South Australia dated 8 September 2000 and in place thereof order that:
(a) the appeal to that Court is allowed with costs;
(b) the judgment of the District Court of South Australia dated 24 March 2000 is set aside and in its place:
(i) there be judgment for the second-named appellant, Kenneth Allan Case, with costs; and
(ii) there be a new trial of the action against the first-named appellant, Geoffrey Mark Roberts, the costs of the first trial of the action against Mr Roberts to abide the result of the new trial.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
GLEESON CJ
GUMMOW JJ
In my view, the evidence did not support the finding that the second appellant was recklessly indifferent to the truth or falsity of what he published. In the circumstances of the case, which include the nature of the activity in which he was engaged, and the contents of the orange pamphlet as they would reasonably have appeared to him, failure to make enquiries about the material other than that concerning the Modbury Hospital was not evidence of reckless indifference, and the mere fact that the second appellant did not have a positive belief in the truth of that material was therefore not evidence of malice.Conclusion The first appellant's appeal should be dismissed with costs. The second appellant's appeal should be allowed with costs. The orders of the Full Court of the Supreme Court of South Australia should be set aside. It should be ordered that the second appellant's appeal to that Court be allowed with costs, that the orders against the second appellant made by the trial judge be set aside, and that there should be judgment for the second appellant in the action. The respondent should pay the costs of the second appellant of the trial, the appeal to the Full Court, and the appeal in this Court. GAUDRON, McHUGH and By grant of special leave, Geoffrey Roberts and Kenneth Case appeal against an order of the Full Court of the Supreme Court of South Australia[17] dismissing their appeal against an award of damages for defamation made by the District Court of South Australia. The respondent, Rodney Bass, sued Roberts for defaming him in three publications issued during the course of an election campaign for the State seat of Florey in South Australia. Bass sued Case for defaming him in the third of these publications. The common law, and not South Australian statute law, provided the principles of defamation law applied by the District Court. When the publications were made, Bass was the Member for Florey and Roberts was an elector in that electorate and Case was an elector in the adjoining electorate. Roberts and Case were opposed to Bass being re-elected.[17]Roberts and Case v Bass (2000) 78 SASR 302. The principal issues in the appeal are whether the evidence justified various findings made by the trial judge and the members of the Full Court and, if so, whether they constituted malice for the purpose of the law of qualified privilege in the context of publications in an electoral contest. There is also an issue as to whether the parties can depart from the positions that they adopted in the Full Court on the question whether the publications were made on occasions of qualified privilege. In the Full Court, Bass did not appeal against the trial judge's finding that the occasions were privileged. In this Court he contends that the occasions were not privileged. In the Full Court, Roberts did not appeal, and Case did not press his appeal, against the trial judge's findings that the publications were not protected by the extended defence of qualified privilege recognised by this Court in Lange v Australian Broadcasting Corporation[18]. They now wish to rely on the extended defence of qualified privilege.[18](1997) 189 CLR 520.Proceedings in the District Court