Rowan v Australian Associated Motor Insurers Ltd

[1990] HCATrans 136

.~~.

~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M29 of 1989

B e t w e e n -

DAMIAN ROWAN

Applicant

and

AUSTRALIAN ASSOCIATED MOTOR

INSURERS LTD

Respondent

Application for special

leave to appeal

DEANE J
GAUDRON J

McHUGH J

Rowan

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 8 JUNE 1990, AT 2.46 PM

Copyright in the High Court of Australia

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MR S.R. HORGAN:  If the Court pleases, I appear on behalf of the

applicant. (instructed by Best Hooper)

MR B. GRIFFIN: If Your Honours please, I appear on behalf of the

respondent. (instructed by Messrs Westgarth Middleton)

DEANE J:	Mr Horgan.
MR HORGAN:	The question in relation to this application is

one that involves qualified privilege and defamation law.

The posi~~on which the applicant here instructs me to

put to this Court in aid of special leave is that

in fact in qualified privilege situations, in the

absence of malice, the belief of the defamer as to

the truth of the words should in all the circumstances

be a reasonable belief.

The state of the law as it stands now is to

be conceded that the requirement is an honest belief

from the person speaking the words and that is as

set out in the case of HORROCKS V LOWE of which a

copy has been given to Your Honours. However, if I

could point out that the situation in fact appears

to have developed over time and there appears to have

been a restriction in what was said in the earlier

cases.

If I could refer Your Honours to the majority

reasons as given by Lord Diplock in HORROCKS's case

and there to page 150 of the report. The

paragraph connnencing closest to the letter B:

Apart from those exceptional cases,

what is required on the part of the defamer

to entitle him to the protection of the

privilege is positive belief in the truth

of what he published or, as it is generally

though tautologously termed, "honest belief."

If he publishes untrue defamatory matter

recklessly, without considering or caring

whether it be true or not, he is in this, as

in other branches of the law, treated as if

he knew it to be false.

And there in those words, in my submission, there is

a further element which must go to the question of

whether or not the qualified privilege exists and

does not, in effect, go to the question as to whether there be malice, express or implicit.

If I could now refer Your Honours to the other

case which has been handed to you, that is the

case of HODGSON V SCARLETT, 1 B & ALD 233, and

Your Honours have the English Reports connnencing

at page 86. If I could refer Your Honours directly

to page 88 of the English Report and two-thirds of

the way down that page where the Chief Justice

Lord Ellenborough indicates, starting on the second sentence

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In the case of master and servant -

if I might break there - which is, of course, the

situation in the instant case -

the convenience of mankind requires that

what is said in fair corrn:nunication between

man and man, upon the subject of character,

should be privileged, if made bona fide,

and without malice. If, however, the

party giving the character knows what he

says to be untrue, that may deprive him of

the protection which the law throws around

such corrn:nunications.

What I would like to refer to in that statement is

the reference to"bona fide"which seems to more

recently have slipped out of consideration in

relation to this privilege. What "bona fide" is

taken to mean these days is that the privilege

is used bona fide or the shelter of that privilege

is used bona fide. In my submission, the Court

should consider whether or not that in fact includes

other elements such as recklessness as indicated by

Lord Diplock, or other extraneous facts which, in
my submission, carry with them an objective standard
to some degree.

If I could also refer, in the case of HODGSON V SCARLETT to page 91 of the English Reports and to the

end of the reasons given by His Honour

Mr Justice Holroyd, and just after the sentence

with the notation 247:

If they be fair corrn:nents upon the evidence,

and be relevant to the matter in issue, then,

unless express malice be shewn, the occasion

justifies them. If, however, it be proved

that they were not spoken bona fide or

express malice be shewn, then they may be

actionable; at least our judgment in the

present case does not decide that they would

not be so.

I refer you specifically to the reference in the

first sentence there that, "If they be fair comments

upon the evidence", that seems to be - what

Mr Justice Holroyd is referring to is an element

of the privilege, the qualified privilege, and not

an element that goes to malice. Therefore, there

is some objective consideration there prior to the

shelter of privilege being given.

More recent authorities indicate that a qualified

privilege occurs on an occasion and without reference

to any sort of objective standard as to when that

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occasion should arise save and except that one of

the obvious occasions is that of an employer

referring to an ex-employee to a person interested L~ t~a:.

It is the submission of the applicant here, in

his seeking special leave, that the Court should

consider the ambit of qualified privilege; that it

is an important question not only in those jurisdictions

where the common law principles still apply without

statute but perhaps also where a statute is applicable
and on this basis the applicant here seeks special

leave.

GAUDRON J:	When you put your propositions on the basis of reasonable belief, are you really doing any more
than trying to expand the general nature of malice?
Are you trying to promote a quite separate matter
which defeats the defence of qualified privilege or are you trying to expand malice?
MR HORGAN:	Perhaps to say that it comes before there

might be a qualified privilege established and that

to have the qualified privilege occasion

and that be it until malice is shown, in my submission,

is not right and that in fact one should look at the

question of reasonableness prior to coming to the

conclusion that there is qualified privilege and apart

from a consideration - - -

GAUDRON J: Well, that it is an occasion. How could that

bear on the occasion? And it is the occasion that

attracts the privilege, is it not, rather than

anything else?

MR HORGAN:  Yes, it is but it is said to be - when one considers

the state of mind of the alleged defamer, it is said

to be his honest belief there. The submission is,

and perhaps more properly put, that it should be

his reasonable belief within constraints and not

without considering the matters I have referred to in

Lord Diplock's speech or perhaps even

Mr Justice Holroyd in that it be fair; it not be	reckless, but that it is on these points that we
would seek to read into the ambit of qualified privilege
a degree of reasonableness. Now, it is clear that in
the circumstances here there was no evidence of
express malice but I do not base the submission on the question of malice.

DEANE J:	Mr Horgan, I appreciate your client was not represented
below but was this point raised below?

MR HORGAN:  I believe not in the Full Court. The annexure

to the affidavit here marked DR3 I	believe were the
only matters put to the Full Court	and I do not believe
that this was.

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DEANE J:  Thank you.

MR HORGAN: If the Court pleases.

DEANE J:  Mr Griffin, the Court need not trouble you.

In a case such as the present this Court would

not be justified in granting special leave to appeal

so that matters of fact could be agitated yet again.

Mr Horgan has sought to identify a question of

law which might justify the grant of special leave to

appeal. That question was not raised in the court

below. In circumstances where the applicant was

not represented in that court, we are, however,

prepared to ignore that aspect of the matter. We

are not, however, persuaded that an appeal to this

Court would enjoy any prospect of success. That

being so, special leave to appeal must be refused.

MR GRIFFIN:  I seek the respondent's costs of the application.

DEANE J: Mr Horgan, I presume you oppose an order for costs?

MR HORGAN: Certainly.

DEANE J. In the circumstances of the case there are no grounds

upon which we could decline to make the usual order

for costs.

MR GRIFFIN: If Your Honour pleases.

AT 2.59 PM THE MATTER WAS ADJOURNED SINE DIE

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