Roberts v Bass

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.