Sands v State of South Australia - [2011] SASC 146

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
SANDS v STATE OF SOUTH AUSTRALIA
[2011] SASC 146
Judgment of The Honourable Justice Peek
16 September 2011
DEFAMATION - ACTIONS FOR DEFAMATION - PLEADING - SOUTH AUSTRALIA
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - AMENDMENT
DEFAMATION - JUSTIFICATION - GENERALLY - WHETHER PLEA ESTABLISHED
PROCEDURE - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - PRODUCTION AND INSPECTION - GROUNDS FOR RESISTING PRODUCTION - PUBLIC INTEREST IMMUNITY - GENERALLY
DEFAMATION - PRIVILEGE - QUALIFIED PRIVILEGE - STATEMENTS MADE IN RESPECT OF A DUTY OR INTEREST - PARTICULAR STATEMENTS - ON MATTERS OF PUBLIC INTEREST - WHAT CONSTITUTES PRIVILEGED OCCASION, COMMUNICATION OR CONDUCT
Defamation - four separate interlocutory applications - first application by the defendant to file an amended defence - whether it was reasonably arguable that the amended particulars supported a plea of justification.
Held: application allowed - reasonably arguable that supported a plea of justification.
Second application to strike out the plea of justification - whether the plea of justification was capable of being established - whether public interest immunity prevented complete disclosure being made such as to result in an unfair trial.
Held: application refused - application premature and appropriate that trial Judge consider it.
Third application to strike out particulars of the plaintiff’s amended reply.
Held: application refused - not established that amended reply should be struck out prior to trial - appropriate matter for trial Judge to consider.
The fourth application was an application to strike out the defence of qualified privilege - reciprocal duties - whether public interest immunity unfairly prevents complete discovery being made by the defendant - whether the particular publications are not sufficiently connected with the asserted privileged occasion.
Held: application refused - not established that defendant's position is unarguable - appropriate matter for the trial Judge to consider.
Civil Liability Act 1936 (SA) s 7, referred to.
S, DJ v Channel Seven Adelaide Pty Ltd [2008] SASC 108, applied.
Rann v Olsen (2000) 76 SASR 450, distinguished.
Sands v Channel Seven Adelaide Pty Ltd (2009) 104 SASR 452; AON v Australian National University (2009) 239 CLR 175; S, DJ v Channel Seven Adelaide Pty Ltd [2008] SASC 229; Rann v Olsen (2000) 76 SASR 450; Sands v South Australia (No 2) [2010] SADC 340; Roberts v Bass (2002) 212 CLR 1; Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; Sands v South Australia [2010] SASC 340; Horrocks v Lowe [1975] AC 135; Adam v Ward [1917] AC 309; Cush v Dillon (2011) 85 ALJR 865, discussed.
Gatley, Gatley on Libel and Slander (Sweet & Maxwell, 11 ed, 2008); Sands v South Australia (Unreported, Supreme Court of South Australia, Judge Withers, 19 March 2009); Bellino v Australian Broadcasting Corporation (1996) 185; Aktas v Westpac Banking Corporation (2010) 241 CLR 79, considered.

SANDS v STATE OF SOUTH AUSTRALIA
[2011] SASC 146
Civil

PEEK J. These are interlocutory applications in an action for defamation.
A brief history of the matter
Ms Corinna Marr (Ms Marr) was shot dead on 4 July 1997 in circumstances inconsistent with suicide. No person has been charged with her homicide (the homicide).
The plaintiff brings this action against the State of South Australia and claims that he has been defamed as a consequence of statements made by members of the South Australia Police Force (SAPOL) on several occasions in the course of investigating the homicide and consequential broader republications.
On 19 September 2005 a statement of claim was filed (FDN 6) and on 10 February 2006 an amended statement of claim was filed (FDN 10). The amended statement of claim pleaded that the natural and ordinary meaning of the publications complained of was that there are strong grounds to suspect that the plaintiff murdered Ms Marr or, alternatively, there are reasonable grounds to suspect that the plaintiff murdered her.
On 5 July 2006 a defence was filed (FDN 11) and on 20 August 2008 an amended defence was filed (FDN 14), both pleading to the amended statement of claim. The defence denied the plaintiff’s allegations that the words complained of were defamatory of the plaintiff; and pleaded justification, qualified privilege and privilege pursuant to s 7 of the Civil Liability Act 1936(SA). On 27 April 2009, a further amended defence was filed (FDN 19).
On 1 June 2009, a reply to the further amended defence was filed (FDN 20).
The plaintiff also separately sued Channel Seven in defamation (the Channel Seven proceedings) and, as has been elsewhere previously noted, both parties to the present action have been content to permit progress largely to await developments in the Channel Seven proceedings. The plaintiff was ultimately unsuccessful in those proceedings, the decision in favour of the defendant being delivered on 27 July 2009.[1] The plaintiff’s subsequent appeal was dismissed by the Full Court on 1 July 2010[2] and his later application for special leave to appeal to the High Court was unsuccessful.
[1] Sands v Channel Seven Adelaide Pty Ltd(2009) 104 SASR 452.
[2] Sands v Channel Seven Adelaide Pty Ltd & Anor [2010] SASC 202.
The plaintiff was granted permission to amend his statement of claim in the present action by a Master of the court in a decision delivered on 17 February 2010 and on 3 August 2010 a further amended statement of claim was filed (FDN 37). I will refer to those matters in more detail below.
Recent interlocutory history of the matter
On 25 March 2010, the defendant filed an application to stay the proceedings herein and an affidavit of Deputy Police Commissioner Burns (Burns) in support of that application. Shortly thereafter, the plaintiff filed an application to cross-examine Burns on his affidavit.
On 9 July 2010, Anderson J heard the interlocutory application by the plaintiff for permission to cross-examine Burns on his affidavit by the defendant and on 10 August 2010 delivered judgment and reasons refusing the plaintiff permission to cross-examine Burns.
On 25 October 2010, Anderson J heard the interlocutory application by the defendant to stay the proceedings and on 15 December 2010 delivered judgment and reasons refusing the application to stay. These reasons will be considered in detail below.
On 10 March 2011, the plaintiff filed an application seeking the following orders:
1 That paragraphs 14 and 19 of the fourth amended defence be struck out.
2That the Honourable Justice Anderson recuse himself from further conduct of the matter.
The defendant in turn filed applications to file a “Fifth Amended Defence” and to strike out portions of the plaintiff’s reply. Anderson J of his own motion subsequently recused himself from further conduct of the matter for reasons that have no bearing on the present applications.
The hearing of the present interlocutory applications
The matters initially came before me for mention on 11 May 2011 when I set a timetable for consideration of the various applications. Senior counsel for the defendant indicated that there would be a challenge to the credibility of a particular witness to be called at trial which might preclude me from hearing the trial; this witness was not the plaintiff and counsel did not object to my continuing to hear the interlocutory applications.
On 1 June 2011, the applications came on before me for consideration of an application for amendment by the defendant of its application to amend the defence.
On 8 August 2011 the applications came on for substantive hearing before me. At the commencement of the hearing I inquired of senior counsel as to whether the situation remained that I might be precluded from hearing the trial herein and he confirmed that it did. I thereupon indicated that I had considered that matter and had come to the conclusion that I should not hear the trial in the circumstances.
The hearing continued for the whole of 8 and 9 August 2011 and judgment was reserved. There were four applications and it is convenient to deal with them in the following order:
1The defendant’s application to file a fifth amended defence;
2The plaintiff’s application to strike out the defence of justification;
3The defendant’s application to strike out parts of the plaintiff’s reply; and
4The plaintiff’s application to strike out the defence of qualified privilege.
The defendant’s application to file a fifth amended defence
The defendant applies to file a fifth amended defence, the amendments relating to additional and substituted particulars of justification. The defendant submits that no trial date has been fixed and that no matters of the type referred to in decisions such as AON v Australian National University[3] arise. These submissions are not really controverted by the plaintiff.
[3] (2009) 239 CLR 175.
The defendant stresses that the amendments in no way take the plaintiff by surprise and submits that their effect is to bring the defence into conformity with the findings of Bleby J in Sands v Channel Seven Adelaide Pty Ltd[4] and the evidence given in that case. While the plaintiff contends that the cases are different, being “based on different imputations”, it is quite obvious that there will inevitably be a very substantial element of common evidence.
[4] (2009) 104 SASR 452.
The real thrust of the plaintiff’s objection to the amendments, although put in various and varying ways, amounts to an assertion that the proposed amended particulars of justification cannot be made out by the available evidence and that the amendments should therefore not be made. Thus the plaintiff protests that:
… the whole pleading is based upon an extremely long bow, in circumstances where we are concerned with the Briginshaw standard, and allegations are so vague that they could never satisfy …
Obviously, the plaintiff has never been charged with the murder of Ms Marr and, on the facts as known to me,[5] there is clearly insufficient evidence to establish a case for him to answer as that expression is known and understood in a court of law. However, one must not lose sight of the fact that what the defendant seeks to justify is not an allegation that the plaintiff murdered the deceased but rather an imputation that a certain level of suspicion against him arises on the objective facts.
[5] I have not seen the confidential material supplied to Anderson J.
Understandably, the plaintiff seeks to focus upon particular aspects of the pleadings and particular items of evidence in order to make specific complaints but the plaintiff does persist in seeking to attack certain aspects of the proposed evidence without viewing it in its overall context. I can do no better than respectfully adopt the words of White J who was faced with much the same approach in interlocutory proceedings in the plaintiff’s action against Channel Seven in S, DJ v Channel Seven Adelaide Pty Ltd.[6] His Honour stated:
[42]The plaintiff’s oral submissions tended to focus on the individual factual allegations contained in the proposed pleading and proceeded on the basis that each individual fact had, by itself, necessarily to raise a suspicion about the plaintiff’s involvement. The submission in relation to each of the factual allegations was that they were of “no moment” and that, by themselves, they did not disclose grounds, let alone reasonable grounds, for the suspicion which is the subject of the claimed imputation.
[43]As I endeavoured to indicate during the course of oral submissions, I do not regard it helpful to consider each individual allegation in isolation. Channel Seven’s submissions make it plain that it is the combined effect of the pleas in paragraph 7.2.1 upon which it relies. …
[44]I repeat that the question for me to consider on the application to amend is whether it is reasonably arguable that the particulars pleaded are capable of supporting Channel Seven’s plea of justification. I do not have to determine at this stage whether, if proved at trial, the particulars proposed will establish the defence of justification.
[6] [2008] SASC 108.
I further note that the Full Court refused the plaintiff permission to appeal from his Honour’s decision, being of the view that the proposed ground of appeal complaining that White J “erred in finding that it was reasonably arguable that the particulars of justification are capable of supporting the first defendant’s plea of justification …” was not reasonably arguable.[7]
[7] S, DJ v Channel Seven Adelaide Pty Ltd [2008] SASC 229, 20-22.
In similar vein, I find that it is reasonably arguable that the proposed amended particulars of justification are capable of supporting the defendant’s plea of justification. I therefore propose to grant permission to the defendant to file a fifth amended defence in the terms set out in the defendant’s application dated 8 July 2011.
The plaintiff’s application to strike out the defence of justification
This application was originally addressed to the fourth amended statement of claim but has been taken to refer to the statement of claim as proposed to be amended pursuant to the application discussed above.
The plaintiff essentially puts this application on two bases, no doubt intended to be cumulative in effect. The first is that the plea of justification is shown to be incapable of being made out in circumstances where the ambit of the evidence is able to be largely known through the Channel Seven proceedings. The second is that the effect of reliance by the defendant on public interest immunity as a bar to discovery and production of certain evidence should have the result that certain defences, including that of justification and fair comment, should be struck out.
The plaintiff’s first basis: the plea of justification is not capable of being established
The first basis put by the plaintiff is similar to the argument put in opposition to the defendant’s application to amend the defence considered above – namely that the particulars, even if established, could never justify the pleaded imputations. I will not repeat the comments I have made above as to the need to view items of proposed evidence in their overall context.
A number of the present submissions have previously been ventilated before various judicial officers without success. To take just one example, the plaintiff submits that various particulars of justification have the effect of reversing the onus of proof. I have considered the decisions to which the plaintiff refers and although they are interesting, it seems clear to me that this is a matter for the trial Judge to bear in mind as a background principle in his consideration of the case as a whole rather than as a discrete matter of law suited to a pre-trial interlocutory ruling. This was also the view of White J who considered this point as part of an application before him[8] and of the Full Court who refused leave to appeal from the ruling of White J.[9]
[8] S, DJ v Channel Seven Adelaide Pty Ltd [2008] SASC 108.
[9] S, DJ v Channel Seven Adelaide Pty Ltd [2008] SASC 229.
Similar comments may be made in relation to most of the matters of this type now relied upon by the plaintiff since, understandably, they have been ventilated in one way or another in either the Channel Seven proceedings, or these proceedings, or both.
The plaintiff’s second basis: the plea of justification should be struck out because public interest immunity prevents complete discovery being made
In essence, the plaintiff submits, as the second basis upon which the plea of justification should be struck out, that the defendant should be prevented from pleading the defences because the assertion of public interest immunity denies the plaintiff proper discovery and therefore leads to an unfair trial.
It is submitted by the plaintiff that “it is not open to police to assert publicly that the plaintiff was and is a suspect (here asserting he is ‘the prime suspect’), and then set up a barrier to prevent the plaintiff from ever challenging that assertion”; indeed, the plaintiff suggests that the defendant is not behaving as a model litigant. The defendant, of course, takes umbrage at any such suggestion and submits in effect that, while the defendant should no doubt conform to the standard of a model litigant, it is also necessary to bear in mind that SAPOL in particular has matters to bear in mind and attend to in relation to the murder investigation that are wider than just the interests of the plaintiff. I do not intend to enter into that debate.
I first note that Anderson J, upon inspecting confidential material that I have not seen, upheld a claim of public interest immunity. That being so, one must accept that, although regrettable, it is not unknown for a trial to run without it being possible to receive important existent evidence and it has been recognised that the effect of public interest immunity may bring about that result. Thus in Rann v Olsen[10] Doyle CJ observed:[11]
[190]Relevantly, s 16(3) of the Privileges Act is no different from any other rule of law that operates to exclude certain evidence from consideration by the Court. Plenty of examples come to mind, and they are examples which involve the application of the law in a manner that may have a telling or even decisive effect on the outcome of a case. The law relating to legal professional privilege and public interest immunity is a good example. These rules of law may result in the Court not receiving evidence which could have a decisive effect on a case.
[191]In my opinion s 16(3) does no more than exclude certain evidence from consideration by a court. To so provide is not to cause the Court to exercise its judicial power in a manner inconsistent with the essential character of the Court or with the nature of judicial power.
[10] (2000) 76 SASR 450.
[11] Ibid 484-485.
Similarly, Lander J stated:[12]
[452]It cannot be that the inability to call some evidence, is of itself, a reason for a court to exercise its inherent jurisdiction to grant a stay. There are a number of circumstances where a party is precluded from calling evidence which would otherwise be admissible in the trial and which might be critical to that party’s case. Evidence which is subject to legal professional privilege or public interest immunity may well be critical in legal proceedings. However it is not available to be called by the parties. The inability of one party to adduce evidence of that kind is not a reason for staying those proceedings.
[12] Ibid 520.
In Rann v Olsen[13] it was decided that the Court had jurisdiction to impose a stay in circumstances of the type there under consideration which, of course, are rather different to the factual situation here. However, what was particularly stressed in that case was that the invocation of a drastic measure such as a stay would usually be for the trial Judge to determine and that the interlocutory application was premature. Thus Doyle CJ stated:[14]
[34]It is possible that at the trial Mr Olsen or Mr Rann will in other ways question or rely on Mr Rann’s evidence to the Committee, or in other ways make use of it. The trial Judge will have to deal with that. This Court can only deal with issues that clearly arise on the pleadings. It cannot give a comprehensive ruling on what can and cannot be done at trial.
…
[82]I have said elsewhere in these reasons, and I repeat, that this Court cannot and should not attempt to predict the precise course of the trial, and should not attempt to determine how s 16(3) will affect the course of the trial. To my mind, the most that the Court can do is to determine whether the Privileges Act is an obstacle to the Court determining the issues that arise on the pleadings. That is the approach that I am taking to the matter.
…
[207]… The grant of a stay involves the exercise of a discretion, and it is to be exercised with considerable care and by reference to all aspects of the case. In some respects the impact of the Privileges Act upon the trial is uncertain, because of the pleadings, and because this Court cannot predict with any precision the course of the trial. As well, the impact of the Privileges Act upon the case is not a simple one. The plea of truth cannot be pursued, but the pleas of qualified privilege at common law and under Lange can be. So can the countering plea of malice.
…
[212]… Difficulties that I have not foreseen might arise at trial. If they do, I consider that they should be dealt with at trial in the light of an understanding of the state of the trial as it then is. I consider that there are too many uncertainties to make it appropriate to exercise the Court’s discretion to grant a stay at this stage.
[13] (2000) 76 SASR 450.
[14] Ibid 456; 466; 487.

Similarly, Mullighan J observed:[15]
[285]The true nature and extent of the issues between the parties and the evidence to be adduced relevant to those issues will probably not be known until the trial. It is then, if asked, that the trial judge will have to consider whether justice demands a stay of the action. I do not think it appropriate at this stage to assume that the issues as presently raised in the pleadings will be precisely the same issues at trial or to make assumptions about the nature of the evidence which will be given.
[15] Ibid 500.
If one reads these remarks as if addressed to the present topic of striking out a defence (rather than imposing a stay), they may be of some assistance in the present case although the cases are clearly not on all fours. However, in my view these are matters for the trial Judge to consider in the context of the evidence adduced and the real issues in the case. I consider that the present application to strike out the defence is premature, just as was the application for a stay in Rann v Olsen.[16]
[16] (2000) 76 SASR 450.
Although entirely a matter for the trial Judge, I simply note that it may be that if the plaintiff were to suggest at trial that the defendant actually did have material in his possession that tends to lessen the degree of objective suspicion in relation to the plaintiff (the material being said by the defendant to be subject to public interest immunity), the trial Judge might agree to view that material. If the trial Judge were then to find that such material did lessen the degree of objective suspicion, the trial Judge might then wish to consider whether it is definitely necessary to uphold the claim for public interest immunity in relation to that particular material. If the answer to that question were to be in the affirmative, it might then be appropriate to reconsider an application to strike out the relevant defence having regard to the relative importance of that material.
Be that as it may, having considered the plaintiff’s various submissions, my view is that they all involve matters for the trial Judge to consider against the whole sweep of the evidence that emerges at trial. This is particularly so having regard to the multiple intersecting facets or levels of admissibility of items of evidence as they concern different issues or types of use in relation to liability and/or quantum in a defamation case such as the present.[17]
[17] Although not determinative, and accepting that the pleadings matrix was then rather different, I take into account the fact that in Sands v South Australia (Unreported, Supreme Court of South Australia, 19 March 2009), Judge Withers declined to strike out the then particulars of justification of the defendant.
Having considered both limbs of the plaintiff’s argument, separately and cumulatively, I decline to strike out the defence of justification.
The defendant’s application to strike out parts of the plaintiff’s amended reply
On 10 February 2011 the plaintiff filed its present amended reply (FDN 43) which asserted in a large number of ways that the defendant had acted out of malice.
The history of the plaintiff’s reply
As noted in chronological sequence above, the plaintiff had first filed a reply (FDN 20) on 1 June 2009. That reply, at paragraph 5, had made clear allegations of express malice in relation to the defence under s 7 Civil Liability Act 1936 and in relation to the defence of qualified privilege. It gave extensive particulars of malice and, although they were not as wide as the particulars to be later inserted in the amended reply, a comparable sting was clearly present. For example, particular 5.9 stated:
The publications by the defendant and each of them were made in the knowledge that there were no reasonable grounds to suspect the plaintiff of murder and that the publications would do irremediable harm to the plaintiff. …
There was no attempt to strike out parts of this reply or any suggestion that it enlivened admissibility of evidence difficulties or any other difficulty; hence it stood as part of the pleadings from 1 June 2009 until 10 February 2011 when the plaintiff filed its present amended reply (FDN 43).
The defendant’s application to strike out parts of the plaintiff’s amended reply flows from the decision and reasons of Anderson J in Sands v South Australia (No 2)[18] (hereafter referred to as “the decision of Anderson J”). During the course of that application, his Honour intimated that the plaintiff’s whole action might be stayed if he insisted on proceeding with the cause of action of misfeasance in a public office and the plaintiff thereupon discontinued that particular cause of action. In short, the defendant argued that the necessary effect of Anderson J’s decision was that the plaintiff was not permitted to rely on malice in relation to any aspect of the case and that the present consequence must be that the various parts of the reply purporting to plead malice or aspects thereof should be struck out.
[18] [2010] SASC 340.
The background to the application before Anderson J
It is necessary briefly to consider the circumstances surrounding the decision of Anderson J. As his Honour there explained, the plaintiff in his original statement of claim had originally pleaded the imputation that there were grounds to strongly suspect that he had murdered Ms Marr. The plaintiff was subsequently granted permission to amend his statement of claim by a Master of the Court on 17 February 2010. At [7] of his reasons, Anderson J summarised the four substantive amendments thus:
(i)As to the natural and ordinary meaning of the press statements and/or the media release, the master allowed two further subparagraphs to be added as follows:
…
(d)     As there were strong grounds to suspect that the plaintiff had murdered Corinna Marr he is the prime suspect, setting him apart from any other suspect; and
(e)     The police had information placing the plaintiff at the scene of the murder which the plaintiff knew about and refused to challenge.
(ii)    A claim of misfeasance in public office.
(iii)     Breaches of statutory duty.
(iv)     Breaches of duty of care, duty of confidence and duty of privacy.
The defendant then sought a stay of the action, claiming that it could not fully plead its defence of justification to the new imputations alleged by the plaintiff in the paragraphs (i)(d) and (e) reproduced above because it would be required to plead facts and material subject to a claim of public interest immunity that had been recently made.
Senior counsel for the plaintiff made lengthy written and oral submissions before Anderson J which, in effect, suggested that the defendant was being disingenuous here. Counsel relied on, inter alia, the following matters. First, there was a delay of almost four years from the defendant filing its defence in July 2006 to pursuing its application for a stay. Second, the defendant had been able to give discovery by filing its list of documents 16 July 2009 in relation to the original imputation of “strong suspicion” without recourse to a claim for public interest immunity, let alone an application for a stay of proceedings. Third, the relatively minor changes in the pleaded imputations could not logically account for the different stance now being taken by the defendant because a proper discharge of the obligations of discovery on the filing of the list of documents 16 July 2009 in relation to an imputation of strong suspicion required exactly the same documents to be discovered as if the imputation had then been in the now amended form. These submissions do appear to have some weight.
In his reasons, Anderson J noted and emphasised that the defendant had previously not had a problem with pleading to the original imputation that “there were strong grounds to suspect that the plaintiff murdered Ms Marr” and sets out at paragraphs [20] to [21] the defendant’s pleading of justification in its original and amended defences. His Honour rightly observed at [22] that these pleadings were “both detailed and quite specific”.
His Honour also noted that there was little difference between the original and amended imputations as to the strength of suspicion and observed:
[91]As to the new imputations, Mr Heywood-Smith submitted that if the defendant was able to give the extensive particulars of justification in relation to the “strong grounds to suspect” imputation, they would be the same in the case of the plaintiff being “the prime suspect”. He submitted that there was very little difference in the imputations. I have already indicated that I generally agree with that proposition.
[92]From the point of view of discovery, in relation to the imputation pleaded in paragraph 24(d) of the statement of claim, Mr Heywood-Smith submitted that there was not effectively any difference in terms of any obligation to discover, the defendant having already pleaded to the earlier imputation and given discovery. Again in terms of the allegation in paragraph 24(e), Mr Heywood-Smith submitted that in terms of the obligation to discover, the new imputation did not add anything.
[93]Mr Heywood-Smith submitted that if it is the case that the defendant cannot adduce all of the evidence that it possesses to establish “strong grounds to suspect” the plaintiff of having murdered Corinna Marr then it had no business in stating that publicly. He submitted that it is of significance that the imputations alleged in 2006 were answered by the defendant after it clearly considered the question of public interest immunity. The earlier defence filed by it raised the question of a stay but nevertheless it filed a defence pleading significant details of the investigation.
His Honour concluded that:
[109]It is my view that the defendant should be able to plead to the new imputations in the same way it has already done in the earlier defence. Therefore in relation to the imputations alleged to have arisen out of the press statements and/or the media release, I am of the view that there is no support for the claimed inability to plead.
…
[114]I make it clear that, although much of the confidential information which I have seen might be relevant for pleading the defence, and in some cases a refinement or elaboration on what is already pleaded, the defendant can proceed on the existing pleas more or less as they are.
The new allegation of misfeasance in public office
What was in fact significant in Anderson J’s view was not the difference in imputations but rather a new cause of action of misfeasance in public office introduced by the amendment of the statement of claim allowed by the Master on 17 February 2010 referred to above. Anderson J’s reasons are lengthy but it can be easily seen that his Honour placed by far the most emphasis on this aspect of a new cause of action. His Honour formulated the new topic heading of “The new allegation of misfeasance in public office” in his reasons and proceeds to make it clear that this matter is the basis of his ultimate decision. His Honour stated:
[117]It is those allegations which raise the need, as submitted by the defendant, to answer them by pleading all of the relevant steps taken by SAPOL in the course of its investigation. This would be directed at showing that at all material times the officers pursued all available avenues of inquiry without malice. I have of course seen the information in confidential affidavits which would be used in defending the allegations of malice. The information is sensitive and not in the public interest to disclose. The defendant says that it is hamstrung. The defendant submitted that these allegations should be withdrawn so that the matter can proceed and the plaintiff can have his day in court, or a stay would have to be granted.
It was in this direct context that his Honour proceeded to state:
[123]Those new allegations, including malice, raise the dilemma of how the matter should be dealt with at this stage. The choices are, it seems to me, either to require a defence to be filed and leave any sensitive issues arising from issues of public interest immunity to be dealt with at trial, or the alternative is to grant a stay. In the case of the former option, if objection is taken in the trial when the defendant’s witnesses are cross-examined, the objection can be ruled on in much the same way as Bleby J did in the Channel Seven matter: see Sands at [467]-[474].
His Honour then squarely addressed the position of the defendant in relation to the leading of evidence at trial to negative malice and he did so, as I read his reasons, in the same context of the new cause of action of misfeasance in a public office. Thus, his Honour stated:
[124]However, that does not answer the defendant’s position from the point of view of leading its evidence as part of the discharge of its onus to lead evidence of all the relevant background of its investigation in negativing the allegation of malice. The defendant, on my assessment of the confidential material, clearly will not be able to lead all the evidence it would want to lead if it had an unrestricted choice. I consider that large parts of the investigation, and in particular the way in which any potential suspects have been investigated and assessed, must be relevant to a consideration of whether there has been any malice in relation to the plaintiff. In my view that information should not be placed in the public arena. It is proper to protect it by way of upholding the claim for public interest immunity. Therefore the defendant is in a position where it cannot run its complete defence.
His Honour then noted that this aspect is relevant not only to the matter which he had been considering – misfeasance in a public office – but also as to a question as to whether the whole action should be stayed. Thus he stated:
[124] … This is relevant as to whether on balance I should grant a stay of the whole action. I have to consider whether the trial would be fair in my balancing exercise and whether there is a risk of a miscarriage of justice.
His Honour then proceeded to consider the other aspects of the action. At paragraph [125] he considered the matters of justification, the new allegations of breach of statutory duty and breaches of duty generally and decided that the defendant is able to plead in relation to these matters.
His Honour then turned to the matter of misfeasance in a public office and stated:
[126]However, in relation to the allegation of misfeasance in a public office, the position is different. If the plaintiff wishes to maintain his allegation of misfeasance, it is my view that the justice of the case would require a stay. The plaintiff may choose to proceed to trial by not proceeding with that allegation. It is, in my view, not an essential part of his claim, given the broad allegations which have been made. The plaintiff can choose to have his day in court on the basis of his allegations of defamation and the imputations which he alleges. The defendant can defend those imputations along the lines of the existing defence. The plaintiff can proceed on all aspects of his claim save for the plea of misfeasance.
(Emphasis added)
His Honour shortly thereafter in the last substantive paragraph of his reasons stated:
[130]It seems to me that it is simply the case that if the plaintiff wishes to raise the stakes by alleging malice, he must face the reality that his whole action would be placed in jeopardy because it is my conclusion that a stay is the only appropriate answer if the allegations are maintained. That is because the defendant would be deprived of a key plank of its defence on the basis of my finding that there is information in the possession of the defendant which cannot be disclosed according to the principles of public interest immunity.
(Emphasis added)
Although the word used in the last paragraph is “malice”, it seems to me that the whole context and logic of that which had preceded this paragraph is that his Honour was here using the term “malice” in the sense of the malice which was at the epicentre of the new cause of action of misfeasance in a public office. In other words, this last substantive paragraph should be read with, and in the light of, the prior paragraph ending with the clear words “The plaintiff can proceed on all aspects of his claim save for the plea of misfeasance.”
I consider that his Honour clearly viewed the matter of misfeasance in a public office as presenting the major difficulty in relation to malice and that a stay could be avoided if that cause of action were to be withdrawn. Accordingly, that cause of action having been withdrawn, the other areas in which malice may conceivably play a part could be addressed in the way that his Honour referred to as the first of two options at [123]:
[123]Those new allegations, including malice, raise the dilemma of how the matter should be dealt with at this stage. The choices are, it seems to me, either to require a defence to be filed and leave any sensitive issues arising from issues of public interest immunity to be dealt with at trial, or the alternative is to grant a stay. In the case of the former option, if objection is taken in the trial when the defendant’s witnesses are cross-examined, the objection can be ruled on in much the same way as Bleby J did in the Channel Seven matter: see Sands at [467]-[474].
Thus putting aside the second option of a stay, the first option was to leave the “sensitive issues” to be dealt with by the trial Judge at trial.
As I see it, his Honour reasoned in the following way. On the one hand, from the point of view of the defendant and SAPOL, there is a qualitative difference between an allegation of committing defamation and a much more serious allegation of committing an abuse of a public office. An inability to defend the latter allegation due to the fact that the relevant evidence was subject to public interest immunity would be a very serious matter indeed. On the other hand, the plaintiff had a number of other causes of action (quite apart from misfeasance in a public office) which could proceed to trial which, from his point of view, were no less useful than the cause of action of misfeasance in a public office. From his point of view, the deprivation of that cause of action was much less severe than a deprivation of the defendant of the ability to defend that particular cause of action would have been.
It seems to me that a position was thus reached where, as a matter of practicality and pragmatism, the cause of action asserting misfeasance in a public office was withdrawn by the plaintiff in the face of the threat of a stay being imposed on the whole action, an assessment which flowed from Anderson J’s delineation of the appropriate balance between the positions of the defendant and the plaintiff.
However, the defendant maintains that it is left in difficulties by an outcome where the plaintiff maintains allegations of malice in its reply. I consider such difficulties more apparent than real. I take as an example paragraph 5.13 of the reply (a particular of malice) which states as follows:
[5.13]The defendant was at all material times of the belief that in referring to the plaintiff as the “prime suspect” at the press conference and in the press statement it could prevent the plaintiff from ever challenging that assertion by claiming public interest immunity over information in the hands of the police capable of proving the contrary.
The fact is that this is no more than a mere allegation, offensive as it may be to members of SAPOL. Its existence in the reply does not invest it with any evidentiary effect let alone raise some sort of presumption or reverse onus effect. In short, the plaintiff will have to prove the allegation. The fact that public interest immunity applies to some of the material in the possession of the defendant will not in any way assist the plaintiff in that required process of proof and nor will it impinge on the ability of, say, members of SAPOL to deny such an allegation in evidence and to have that denial accepted by the trial Judge in the absence of proof by the plaintiff.

I had at one time considered that it might be appropriate to strike out some only of the parts of the reply impugned by the defendant. However, I have come to the conclusion, consistent with other parts of these reasons, that it is more appropriate that, if the defendant is so advised, it may renew its application before the trial Judge.
The plaintiff’s application to strike out the defence of qualified privilege
In Roberts v Bass[19] Gaudron, Mchugh and Gummow JJ concisely summarised the ambit of common law qualified privilege as follows:[20]
[62]The common law protects a defamatory statement made on an occasion where one person has a duty or interest to make the statement and the recipient of the statement has a corresponding duty or interest to receive it. Communications made on such occasions are privileged because their making promotes the welfare of society. But the privilege is qualified - hence the name qualified privilege - by the condition that the occasion must not be used for some purpose or motive foreign to the duty or interest that protects the making of the statement.
[Footnotes deleted]
[19] (2002) 212 CLR 1.
[20] Ibid 26.
The plaintiff contends that the defence of qualified privilege should be struck out on what I understand to be essentially three bases:
1the common law requirements of reciprocal duties are not satisfied;
2public interest immunity unfairly prevents complete discovery being made by the defendant; and
3the particular publications are not sufficiently connected with the asserted privileged occasion.
The plaintiff’s submission that the common law requirements of reciprocal duties are not satisfied
I consider that there are strong arguments to be made in favour of the plaintiff’s position that common law qualified privilege did not apply in the circumstances of the present case.
However, I note that on 19 March 2009, Judge Withers declined to strike out the defence of qualified privilege, being of the view that it was at least arguable that the defence could be established.[21] I also have regard to the comments of Gummow J in Bashford v Information Australia (Newsletters) Pty Ltd:[22]
[141]One consequence of the matters which Dixon J and Jordan CJ emphasised is that, as has long been recognised, different minds, whilst informed of the legal principles, nevertheless may differ as to the outcomes in particular cases. Guise v Kouvelis is an example, the majority of the Court differing from Dixon J as to the result. Another is that the outcome in this case cannot be guided by apprehension of what conceivably could be the outcome of other litigation where other considerations and evidence might be put forward in respect of other claims of occasions protected by qualified privilege.
(Footnotes omitted)
[21] See Sands v South Australia (Unreported, Supreme Court of South Australia, Judge Withers, 19 March 2009).
[22] (2004) 218 CLR 366, 418.
I have ultimately come to the view that the defendant’s position is not unarguable and that it is appropriate to leave the matter for the decision of the trial Judge.
The plaintiffs submission that public interest immunity precludes complete discovery being made
The plaintiff also asserts, consistently with his position in relation to the defence of justification, that the defence should also be struck out because public interest immunity unfairly prevents complete discovery being made. I consider that the remarks that I have made in the context of the application to strike out the defence of justification apply equally here and I will not repeat them.
The plaintiff’s submission that the particular publications are not sufficiently connected with the asserted privileged occasion
I think it appropriate to make some relatively brief remarks concerning the plaintiff’s submission that the particular publications are not sufficiently connected with the asserted privileged occasion.
It is convenient to first note the position of the defendant. This is to formulate an historical analysis of qualified privilege which strongly emphasises the role of malice and culminates thus:
50It will be observed from the historical development of the law, that the precept of malice underlies the definition of what constitutes an occasion of qualified privilege, in the sense that it negatives the otherwise available inference of malicious publication.
51There is no assumed malice from the circumstances of the police press conference and statement. The defendant’s case is that it was in furtherance of the investigation of a serious crime, with an intention to keep the public informed of that situation, and in the hope of eliciting useful information for the investigation. The fact that the plaintiff’s name was not mentioned is of some importance.
The heavy focus on malice in the defendant’s submissions no doubt has something to do with the wider submission by the defendant considered above, namely that the basis, or at least the necessary consequence, of the decision of Anderson J in Sands v South Australia[23] is that all argument involving “malice” should be struck out of the case.
[23] [2010] SASC 340.
However, the defendant’s approach does have some historical support and to an extent corresponds with the approach taken by Lord Diplock in Horrocks v Lowe[24] where His Lordship stated:[25]
Logically it might be said that such irrelevant matter falls outside the privilege altogether. But if this were so it would involve application by the court of an objective test of relevance to every part of the defamatory matter published on the privileged occasion; whereas, as everyone knows, ordinary human beings vary in their ability to distinguish that which is logically relevant from that which is not and few, apart from lawyers, have had any training which qualifies them to do so. So the protection afforded by the privilege would be illusory if it were lost in respect of any defamatory matter which upon logical analysis could be shown to be irrelevant to the fulfilment of the duty or the protection of the right upon which the privilege was founded. As Lord Dunedin pointed out in Adam v Ward [1917] AC 309, 326-327 the proper rule as respects irrelevant defamatory matter incorporated in a statement made on a privileged occasion is to treat it as one of the factors to be taken into consideration in deciding whether, in all the circumstances, an inference that the defendant was actuated by express malice can properly be drawn. As regards irrelevant matter the test is not whether it is logically relevant but whether, in all the circumstances, it can be inferred that the defendant either did not believe it to be true or, though believing it to be true, realised that it had nothing to do with the particular duty or interest on which the privilege was based, but nevertheless seized the opportunity to drag in irrelevant defamatory matter to vent his personal spite, or for some other improper motive.
[24] [1975] AC 135.
[25] Ibid 151.
However, in my view it has for some time been the preferable view in Australia that the plaintiff may challenge portion of a publication as simply being insufficiently connected to a privileged occasion and, if that challenge is successful, will have no need to resort to an argument about malice. I consider that that approach is to be clearly seen, although expressed in differing terms, in the various judgments in Adam v Ward.[26]
[26] [1917] AC 309.
I respectfully agree with the comments in Gatley[27] wherein the learned editor reproduces the above extract from the judgment of Lord Diplock in Horrocks v Lowe[28] and then observes:
On the face of it, this amounts to saying that even irrelevant matter does not fall outside the privilege (which would be a question for the judge), but can only be evidence of malice (a question for the jury); or that the test of irrelevance is not “objective” but “subjective”, which in practical terms has much the same effect because it would blur the boundaries between irrelevance and malice. This is difficult to reconcile with the clear terms of four of the five judgments in Adam v Ward and even Lord Dunedin, upon whom Lord Diplock relies, admitted that:
If the defamatory statement is quite unconnected with and irrelevant to the main statement which is ex hypothesi privileged, then I think it is more accurate to say that the privilege does not extend thereto, than to say, though the result may be the same, that the defamatory statement is evidence of malice.
[27] Clement Gatley, Gatley on Libel and Slander (Sweet & Maxwell, 11^th ed, 2008) [14.60].
[28] [1975] AC 135. Surprisingly, the defendant does not refer to this authority.
Further, it seems clear that the preponderance of recent Australian authority, including statements by members of the High Court in Bellino v Australian Broadcasting Corporation[29] and in Bashford v Information Australia (Newsletters) Pty Ltd,[30] has favoured that approach.
[29] (1996) 185 CLR 183, 201-205 (Brennan CJ); 226-228 (Dawson, McHugh & Gummow JJ); 246-247 (Gaudron J).
[30] (2004) 218 CLR 366, 378-379 (Gleeson CJ, Hayne and Heydon JJ); 415; 421 (Gummow J); 434-436 (Kirby J).
The correctness of that approach now appears to have been specifically confirmed by the recent decision of the High Court in Cush v Dillon.[31] French CJ, Crennan and Kiefel JJ there emphasised that it is first necessary to understand the nature and extent of the particular duty in question before turning to the question of malice. Their Honours stated:[32]
[12]The defence of qualified privilege is based upon notions of public policy, that freedom of communication may in some circumstances assume more importance than an individual's right to the protection of his or her reputation[33]. The question of whether the person making a defamatory statement was subject to some duty or was acting in the protection of some interest, in making the statement, is to be understood in this light.
…
[15]… The nature and the extent of the duty or interest must be considered before the question of malice is addressed. In Roberts v Bass,[34] Gleeson CJ observed that the “kind of malice that defeats a defence of qualified privilege at common law is bound up with the nature of the occasion that gives rise to the privilege”.
[31] (2011) 85 ALJR 865.
[32] Ibid 868; 869.
[33] Aktas v Westpac Banking Corporation (2010) 241 CLR 79, 89 [22].
[34] (2002) 212 CLR 1, 11 [8].
Their Honours then appear to settle the question of whether the defence of qualified privilege was subject to a condition that the words must be relevant to the occasion of the duty or that an allegation of irrelevance was to be dealt with under the matter of malice by accepting Gatley’s view of the decision in Adams v Ward[35]. Their Honours stated:[36]
[19]Adam v Ward confirms that there may be limits to what may be said upon a subject on an occasion of qualified privilege and that those limits are to be tested by the connection of the statement to the subject. …
[35] [1917] AC 309.
[36] (2011) 85 ALJR 865, 870.
Their Honours refer to various formulations by the members of the Court in Adam v Ward[37] (which as observed above, differ at least in emphasis) without indicating a preference as between them. Their Honours later explain:[38]
[22]It is not necessary to determine whether the descriptions given of irrelevant material in Adam v Ward vary as to the stringency with which relevance ought to be tested. The passage from Toogood v Spyring suggests that no narrow view should be taken of the pursuit of a duty or interest in what was said. To do so may unduly restrict the operation of the defence. …
(Footnote omitted)
[37] [1917] AC 309.
[38] Cush v Dillon (2011) 85 ALJR 865, 870.
What is made very clear by their Honours is that there must usually be an enquiry as to whether the boundaries of the occasion have been exceeded and such would certainly be necessary in the present case. Thus their Honours stated:[39]
[25]The enquiry which precedes that of actual malice is undertaken in order to determine the boundaries of the privilege, by reference to the duty or interest which gave rise to it. It may be said to involve an objective assessment. It is not to be confused with an enquiry as to whether a person was actuated by malice in using exaggerated words. As Earl Loreburn observed in Adam v Ward, a statement which exceeds the occasion may be evidence of malice, but “the two things are different”.
[39] Ibid 871.
As may be evident, I consider that there are strong arguments to be made in favour of the plaintiff’s position here. However, again I have come to the view that the defendant’s position is not unarguable.
Therefore, in all of the circumstances, although with considerable hesitation, I consider it best to leave the consideration of the asserted defence of qualified privilege to the trial Judge.
Proposed orders
I make explicit what would otherwise in any event be implicit: the parties are free to agitate the above second, third and fourth matters before the trial Judge in due course and the dispositions herein are in no way intended to influence, let alone impinge upon, the discretion of the trial Judge in relation to his or her consideration of those matters.
For all of the reasons above, I propose to make the following orders:
1The defendant is granted permission to amend its defence by filing a fifth amended defence in the terms set out in its notice for specific directions dated 8 July 2011.
2All other applications by both the plaintiff and the defendant are refused.
3Costs reserved.