Skalkos & Anor v Assaf & Anor S45/2002

[2002] HCATrans 649

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S45 of 2002

B e t w e e n -

THEODORE SKALKOS

First Applicant

FOREIGN LANGUAGE PUBLICATIONS PTY LIMITED

Second Applicant

and

JOSEPH ASSAF

First Respondent

ETHNIC COMMUNICATIONS PTY LIMITED

Application for special leave to appeal

GAUDRON J
GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 DECEMBER 2002, AT 9.37 AM

Copyright in the High Court of Australia

_________________

MR T. MOLOMBY, SC:   May it please the Court, I appear for the applicants.  MS J.M. BAXTER appears with me.  (instructed by Tony Lazaropoulos)

MR T.E.F. HUGHES, QC:   May it please your Honours, I appear with my learned friend, MS K.A. REES, for the respondents to this application who were the plaintiffs below.  (instructed by Mallesons Stephen Jaques)

GAUDRON J:   Yes, Mr Molomby.

MR MOLOMBY:   Your Honours, the central proposition at issue in this matter is whether common law qualified privilege, having been established as an occasion, may be defeated by any other means than malice.

GAUDRON J:   That perhaps depends on what is meant by “malice”, does it?

MR MOLOMBY:   Indeed, your Honour, and might I in a moment come to some recent relevant aspects of that.  In our submission, other than the judgments below, in this country there is no case, and for that matter no textbook, in support of the respondents’ position and, most importantly, it is contrary to judgments in this Court.  Might I very briefly, for three lines worth, go to the judgment of the Court in Lange 189 CLR.  I do not need to take your Honours to the page.  I propose to read three lines from page 572, about nine lines into the page, where the Court said this:

At common law, once an occasion of qualified privilege is found to exist, the privilege traditionally protects a communication made on that occasion unless the plaintiff is actuated by malice in making the communication.

In that case considerable attention was given to the defence of common law qualified privilege and the case recognised an extended category of that privilege which was subject to defeasance if the defendant could not show reasonableness.  It is, in our submission, paradoxical and quite contrary to the tenor of the consideration of the Court in that case if matters which would be considered centrally as going to reasonableness also are to be taken into account in defeating traditional common law qualified privilege.  A more recent decision of this Court illuminating the matter is that handed down ‑ ‑ ‑

GAUDRON J:   What it actually held was not that it defeated the privilege but that because of these considerations it was not an occasion of qualified privilege.  Is that not correct in this case?

MR MOLOMBY:   No, if it please the Court, the phrases used quite frequently in the judgment were “abuse of the occasion”, meaning the occasion found to exist of qualified privilege.  I can take your Honours to those ‑ ‑ ‑

GAUDRON J:   How then could that be found?  Was not the only task for the Court to determine whether it was an occasion of qualified privilege?

MR MOLOMBY:   That is our case, your Honour, yes, and in our submission, the Court went beyond its true task into territory which was not the Court’s at all in the face of clear findings by the trial judge, accepted as clear findings by the Court of Appeal.  May I go to those.

GAUDRON J:   Clear findings by the jury?

MR MOLOMBY:   No, your Honour, clear findings by the judge as to the existence of the occasion of qualified privilege.  The jury’s role in the case was in consideration of the question of malice.  The questions that they considered appear at pages 184 and 185 of the book; they are the actual questions.  There were three, questions 45, 46 and, over the page, 47.  The questions are in identical terms but they relate to different aspects of the publication because the letter went first to the Prime Minister’s office and then somehow bounced to Telecom and then there was the article published in the newspaper, but they are the identical questions in relation to each phase of the event.  That was the jury’s role and the jury answered “No” to those questions, that is, the plaintiffs failed to establish any of those matters, they being the matters necessary to establish to found malice.

In light of the Court’s decision in Roberts v Bass handed down yesterday, perhaps the question which should have received the greater emphasis rather than being put as apparently equal questions is the second one, that is, about indirect motive.  I have extra copies of yesterday’s judgment if the Court wishes them and I am sorry they were not on the list because I only got onto it last night.  If I might briefly go to two paragraphs in the joint judgment in which two of your Honours participated, I am going to paragraphs 69 and 76.  In paragraph 69 it is said ‑ on page 16 just over halfway through the paragraph, and this is all in the context of course of common law qualified privilege:

the privilege will be lost only if it used for a purpose other than that for which it is granted –

In paragraph 76 there is a reiteration in slightly different terms of that same proposition, at the very last two lines of the paragraph:

qualified privilege is, and can only be, destroyed by the existence of an improper motive that actuates the publication.

And there is elsewhere in the judgment emphasis on the fact that what is required as to improper motive is not only its existence but the fact that it is the actuation of the publication.

There are some sections in the Chief Justice’s judgment in paragraph 5 which suggest the same thing without saying it in quite such direct terms.  In our submission, the whole tenor of this judgment is consistent only with those propositions I have just read, particularly from paragraphs 69 and 76, that is, the only matter capable of defeating qualified privilege once established is malice.  Of course, the Court’s judgement goes into some refinement of what precisely is required to establish malice in particular circumstances.

CALLINAN J:   Did Justice McHugh saying anything in relation to that in this case?

MR MOLOMBY:   He was one of the parties to the joint judgment, your Honour, and I should have said, I am sorry, the joint judgment was a judgment of Justices Gaudron, McHugh and Gummow, and therefore paragraphs 69 and 76 I read are from that judgment.

In our submission, what has happened in this case is that undue regard has been paid to a decision of the House of Lords.  Ultimate appellate courts in the common law world are of course to be accorded higher persuasive authority but not, in our submission, in relation to a decision in which they have considered a decision of this Court and rejected it.  That is what happened in Reynolds and rather by the back door, considerations ‑ ‑ ‑

GUMMOW J:   They rejected it but perhaps they did not understand it.

MR MOLOMBY:   Your Honour, that is a matter more for your Honour than me.

In our submission, a number of inappropriate matters have been brought into play in this case to found what the trial judge called the abuse of the occasion of qualified privilege.  They are derived from Reynolds.  Reynolds, in our submission, if it is necessary to make this submission, is a case which was, for a start, unduly influenced by considerations attaching to media publication, putting in a very disadvantaged position publications otherwise than in the media.  Lord Nicholls’ enumeration of factors to be taken into account refers explicitly in two or three points to circumstances surrounding newspaper publication as if that were the only game in town in relation to qualified privilege.  In our submission, it is a decision which is bad in policy because when one looks at the reality of the application of common law qualified privilege in many everyday circumstances in life, people are not able on the run to make assessments of the degree of misstatement of fact which the law is able to tolerate, to use one test, taking into account and such things.  What people need to apply practically in everyday life, this important defence, is a test which can be simply explained and simply applied, talking about matters in which the talker has an interest to people who share that interest, expressing the speaker’s honest opinion about the matter.  That pretty much sums up in a commonsense way what common law qualified privilege is.  In our submission, Reynolds takes it right off those tracks, overcomplicates it and makes it really impractical for everyday life.

Might I return to the question your Honour Justice Gaudron raised, and that is whether there was found to be an occasion by the trial judge.  That appears at pages 76 and 77 of the first book, paragraph 171 which starts halfway down the page.  His Honour did approach this in a slightly tentative way but, having introduced the matter as appears from the start of paragraph 171, said - and this is in relation to the letter, the first of the two publications – at the bottom line of the page:

One could accept that there is an occasion of privilege here between the defendants and the publishees with regard to the efficient and cost effective communication of government advertising and information to the ethnic community.  To this may be added the question whether there have been any abuses by persons or organisations or government instrumentalities involved in that area of activity which resulted in the exacerbation of cost to the ethnic community of receiving such information.  To this may be added proposals for overcoming the suggested problems.

And all of those matters were of course involved in the publication in question.  Then he says:

The critical question is then whether the first and third imputations which the jury have found to be both false and defamatory can be accommodated within that occasion.

The intellectual construct, the approach, appears to be to find there is an occasion or accept there is an occasion and then see whether these imputations in this phrasing can be accommodated within it, but the concept is given various other phrasings throughout the judgment.  That is the finding in relation to the letter.

The paper is at page 86 and that is stated in perhaps more assertive terms at paragraph 199:

It would seem to me that the average reader who would necessarily be conversant with the Serbian language of Novosti would have an interest in the efficient and cost effective communication of government advertising and information to the ethnic community of whom, no doubt, the vast majority could be said to belong.

That is then expanded a little.  It is reinforced by his Honour’s finding of fact, if there were any doubt about it, in relation to the section 22 defence, which of course is not before this Court in its own right as a section 22 defence, but what his Honour said there in relation to the facts is reinforcing of that position.  That is at page 103 where he says this in paragraph 230:

I have no difficulty in accepting that the average reader of Novosti would have an interest, or at least an apparent interest –

and that is of course, as your Honours would know, the terminology of the statute, “interest or apparent interest” –

in government policy in relation to communicating information on his or her rights, entitlements and obligations, particularly where it is asserted that such policy is causing the deprivation of essential information to the reader and inflating the cost of the newspaper.

And again, those are the facts of what was being asserted.

The Court of Appeal, in the President’s judgment at page 263, accepted quite definitely that there was a finding of an occasion of privilege.  Paragraph 20 in the President’s judgment says:

Carruthers AJ found that there was an occasion of privilege “between the defendants and the publishees” with regard to ‑

those three matters which I do not need to read out.

In our submission, your Honours, there was that finding and the issue is the basis on which it may be avoided or stepped around or defeated.

GAUDRON J:   If any, in the absence other than by malice.

MR MOLOMBY:   Other than by malice, and it is our position that it may not be.  Absent malice, the door is closed.

There is an issue which has been raised, in our submission not accurately, in the respondents’ submissions about relevance, relevance in the sense of logically connected with.  It is quite true that if there is material in a publication - and this is what this Court said in Bellino although it has been said in many other locations as well - if material appears in a publication which is entirely irrelevant to the matters of common interest between the publisher and the publishees, that matter will not be covered by any privilege and its existence may be taken into account in determining whether there was malice, but that, in our submission, is the end of the function of irrelevant matter.  It only goes two ways.  It may be taken into account as one of the many factors that may be as to whether there is malice.  It is out of the ring in this case because there was found to be no malice.  If there is something that is entirely irrelevant it is not covered by the privilege but the relevant material still is.  It only take itself out of the coverage; it does not affect the existence of the privilege for the relevant material.  Our reply directs some attention to the way the word “relevance” has been used in a rather elastic way in the submissions and in the reading of some of the historical authorities which, in our submission, have been inappropriately read in some respects by the trial judge on this point, in some respects by the Court of Appeal, and in the respondents’ submission.

If it please the Court, unless there is any matter the Court would wish me to address, those are my submissions.

GAUDRON J:   Yes, thank you, Mr Molomby.  Yes, Mr Hughes.

MR HUGHES:   Your Honours, the questions that fell to be determined by the Court of Appeal as to each of the publications complained of were:  (a) what, if any, occasion of qualified privilege within – and I emphasise the word “within” – the pleadings and particulars was available to the defendants as a basis for avoiding liability with respect to the imputations found by the jury?  That is the first question, question (a).  Question (b) was:  was either of those defamatory imputations within the ambit of - that is, relevant to - any such privileged occasion?

Your Honours know the imputations as found by the jury; they are easily borne in mind.  The first one, that the plaintiffs exploited publishers of ethnic community newspapers for selfish financial purposes by selling government advertising to them at exorbitant prices.  That was the first.  The second, that the plaintiffs conduct the business of ethnic communications in such an unethical manner as to cause ethnic communities to be deprived of essential government information.

In the way the trial developed and in the way that his Honour Justice Giles dealt with the matter in the Court of Appeal, the answers to those questions depend upon an analysis, your Honours, of the particulars given under Part 67, rule 18(1)(b) of the Supreme Court Rules:

of the facts, matters and circumstances on which the defendant relies to establish . . . 

(b) that any imputation or matter was published under qualified privilege.

Those particulars, as ultimately amended at the trial after much oral discussion, are set out in the second volume of the application book in paragraphs 17 and 19 at pages 261 and 262.

His Honour Justice Mason, the President, with respect, was not altogether accurate in suggesting in paragraph 46 of his reasons at page 275, that is the paragraph in the middle of that page, your Honours, in saying that the particulars set out in paragraph 18 at page 262 of the reasons disclosed “an undoubted occasion of privilege”.  Those in fact, if one goes back to page 262, your Honours, were particulars of the facts, matters and circumstances on which the defendants relied to establish a matter of public interest.  The connection between paragraph 18 and paragraph 17 arose in this way.  The supposed occasions of privilege set out in paragraphs 17 and 19 were defined in a particular way and the definition included a statement that the publishees of each of the matters complained of had an interest in knowing the facts and matters stated as set out in paragraph 18 of the reasons, that is, stated as in the particulars of public interest.

Thus, the defendants, your Honours, elevated the truth of the facts and matters set out in paragraph 18 of the President’s reasons as going to public interest, elevated the truth of the such facts and matters to the forefront of the defence of qualified privilege, as appears from the second volume, page 299 at lines 14 and 15:

The recipients of each of the matters complained of had an interest in receiving the matter published because they were members of the public and it related to matters of public interest in knowing the facts and matters stated.

In that situation, your Honours ‑ ‑ ‑

GAUDRON J:   Is that really the end of the matter?

MR HUGHES:   It is because, your Honour, as my learned friend has very frankly said in relation to paragraph 76 of the trial judge’s reasons on qualified privilege, he expressed himself tentatively; he went outside the particulars that he had earlier decided bound the defendants.

GAUDRON J:   It might have been within them.  It might depend from which perspective you are looking.

MR HUGHES:   Yes.

GAUDRON J:   Let us assume the publishees did not have an interest in knowing the facts and matters stated but the publishees had an interest in knowing of the way in which information was disseminated to ethnic communities.  Would that not be sufficient?

MR HUGHES:   No, your Honour, because, as Justice Giles correctly found or held in the Court of Appeal, the only occasion of qualified privilege open to the defendants – and it is all set out in his Honour’s reasons – was the occasion that arises when a person makes a complaint to a person in authority about the conduct of a government department.  In this case the authority was the Prime Minister.  The decision of Justice Giles, which was clearly correct, was that the imputations were irrelevant to any such occasion of qualified privilege because they were not about the conduct of any government department; they were about the plaintiffs’ conduct in dealing with clients in their business.  That is the crucial point in this case, that the only occasion of qualified privilege properly found was that one and it was clearly correct for the Court of Appeal to say, particularly Justice Giles, that the imputations were plainly irrelevant to that head of privilege because they reflected not on the department but upon the plaintiffs’ way of doing business and they were false and defamatory.

In the situation that arose on the particulars the defendants asserted, inter alia, the truth of the allegation that there were rorts and can hardly complain if the truth of such an allegation became central to the maintenance of the one available occasion of qualified privilege that had been pleaded and particularised.  The defendants were asserting, in effect, that the defence depended in substantial measure upon the truth of the allegation of rorting, to use that colloquial word, clearly raised against the plaintiffs and rejected by the jury.  This was therefore a case, your Honours, in which, as the President correctly held at page 274, paragraph 42, the accuracy or otherwise of the facts and matters said to be the substratum of the defence was directly relevant to the establishment of the defence.

As to question (a), the first question I postulated above, as Justice Giles correctly held – question (a) being what, if any, pleaded occasion of privilege was open to the defendants.  And we say, as Justice Giles correctly held, the only occasion of privilege pleaded with respect to the publication to the Prime Minister of the letter was complaint to him as a person in authority concerning the conduct of a government department.  One gets that, your Honours, from the second volume, page 304, paragraph ‑ ‑ ‑

GAUDRON J:   Surely, however, the occasion of privilege in relation to a communication between a resident of Australia and the Prime Minister of Australia would extend beyond the conduct of a government department.  It may not have been particularised as such but it would extend beyond that.

MR HUGHES:   It could, but we were dealing, your Honours, with a defence as pleaded and particularised.  This was a 34‑day trial and there were many issues in it but we argued – and, in the view of Justice Giles successfully argued, and his view was right - that the sole occasion of privilege open to the defendants in the way they pleaded the case and fought the case was as I have defined.

GUMMOW J:   Does Reynolds have anything really for this case?

MR HUGHES:   The only possible relevance of Reynolds, your Honour, from the perspective of this case is that it provides a non‑exclusive possible shopping list of matters that go to the question whether an occasion of qualified privilege will arise in relation to a media publication, and of course one of these publications was a media publication.  Reynolds was not decisive.  It provided no more than a non‑exclusive shopping list.  The critical question in this case was whether the defamatory imputations were within the umbrella in the sense of relevant to the only occasion of privilege available on the pleadings to the defendants.

The publication, your Honours, in Novosti of the major part of the letter was incapable of course of being in itself a complaint to the Prime Minister; it was merely relevantly no more than a record of the fact that a complaint had been made.  That publication was relevantly no more than the republication to readers of Novosti of complaints which the defendants had made to the Prime Minister in the letter.

The second head of qualified privilege which one might derive from the particulars as relating only to Novosti is referred to in the second volume at pages 298 and 299, page 299 at lines 30 to 39.  I will not read it but it was really a failed attempt to invoke a Lange‑type defence.  It failed, dropped out, as Justice Giles rightly said, because there was no attempt to allege or prove that the publishers had acted reasonably in publishing the imputations complained of.

As to question (b), that is, were the imputations published within the umbrella of the privilege, there is no dispute here about the Bellino principle.  My learned friend accepts it.  That is, that defamatory imputations published on an occasion of privilege will not be defensible by reason of that occasion if their publication is actuated by malice.  That does not arise here.  The other basis upon which defamatory imputations published where there is an occasion of privilege will not attract the defence is where their publication is irrelevant to the occasion.  I will not do more than just invite your Honours to bear in mind what is said in Bellino 185 CLR in the joint judgment of Sir Daryl Dawson, Justice McHugh and your Honour Justice Gummow.  At page 228, this is what their Honours say and it is accepted by my learned friend as law:

It is true that, at common law, privilege only attaches to those defamatory imputations that are relevant to the privileged occasion.  Where a potentially privileged communication consists partly of matters relevant to the privilege and partly of matters that are not relevant, qualified privilege only attaches to that part which is relevant to the occasion.  Moreover, the inclusion of the irrelevant part in communication affords evidence of malice –

That statement does not apply here but the part of the statement that deals with irrelevance is the key to the decision in this case and was rightly regarded by all the judges in the Court of Appeal as the key, namely, relevance to the supposed occasion.  It was necessary to define the occasion.  Justice Giles did.  I have to say, with respect, that the trial judge said quite frankly in paragraph 6, despite my efforts to keep him within the ambit of the pleaded occasion, that he was minded to go outside it.  He was wrong in doing so and he made a rod for his own back, with very great respect.  Justice Giles got it completely right in the Court of Appeal and it has to be said that in the Court of Appeal the President tended to go outside the ambit of the particulars by which the defendants were bound.

GAUDRON J:   That depends, does it not, Mr Hughes, on whether it can be said that the matters were relevant to, logically connected to.

MR HUGHES:   Yes, your Honour, and as to that all the judges in the Court of Appeal have found for the plaintiffs on the issue of relevance on the simple ground ‑ ‑ ‑

GAUDRON J:   What do they mean by it?  They do not seem to express exactly what they mean by it.  They seem to do so by reference to the Reynolds‑type considerations.

MR HUGHES:   Not really, on analysis.  On analysis the case on the only head of privilege available to the defendants was a very narrow one and I have stated it; I will not restate it.

GAUDRON J:   But “relevant to” expands it somewhat.

MR HUGHES:   There was no occasion for expansion.  The question was whether the defamatory imputations which seriously attacked the business integrity of the plaintiffs could be regarded as within the ambit of a privileged occasion which gave the defendants scope to complain to the Prime Minister about the conduct of one of the government departments, namely, Telecom – this was before Telecom became ‑ ‑ ‑

CALLINAN J:   Mr Hughes, qualified privilege is a technical defence and defendants have to accept that they are bound by the technicalities of their pleadings.  The pleadings have to be very carefully articulated and they have to bring themselves within it.

MR HUGHES:   Yes, your Honour.  May I say something about that.  Justice Giles, with complete justification, criticised the defendants’ pleadings as being in effect confusing and confused.

CALLINAN J:   We had the problem in Roberts v Bass, whether the so‑called Lange defence had been abandoned or not.  There were all sorts of problems there in relation to the pleadings.  Defendants can hardly be heard to complain if, having availed themselves of a technical defence, stated their position with great particularity and are then stuck with it.

MR HUGHES:   Your Honour has encapsulated in language more felicitous than any I could use something that I was going to say later in this argument.  What we say of course as regards republication to the officers of Telecom was that that is ex facie outside the privilege, but anyhow that publication falls once it is found anyway that the imputations were not relevant to the occasion.

Both the trial judge and Justice Mason, though reaching the right result, namely irrelevance, subjected themselves to the unnecessary task of considering supposed occasions of privilege which were outside those

pleaded.  By contrast, the simple and conclusive answer given by Justice Giles with respect to the publication to the Prime Minister of the letter was that the defendants were confined to one occasion of privilege only, and I have defined it, and his Honour and the learned judges in the Court of Appeal held in substance that because the first and third imputations were not directed at the conduct of any government department but to the conduct of the plaintiffs in dealing with ethnic community publishers, the imputations were not relevant to the occasion.  That conclusion is plainly right.  It is not attended, we submit, with sufficient doubt to warrant the grant of special leave.

This is a case in which the particulars relied upon throughout the special leave question were, as Justice Giles said, poorly expressed and obscure and where the process of amending the particulars was itself obscure.  That factor detracts heavily from the utility of this case as a vehicle for special leave.  From the perspective of the particular case, any broad question concerning interaction between matters going to malice and matters definitive of permissible limits of relevance governing the publication of a defamatory imputation on an occasion of qualified privilege dose not arise except as an interesting theoretical debating point.  This case should be decided as it was or should have been below on the simple ground that the imputations found by the jury were clearly outside the very limited occasion of qualified privilege marked out in confused and confusing pleadings.

We have criticised the attempted statement of special leave points in our outline and we rely of course on our outline.  There is a question about costs that arises if your Honours decide to refuse special leave.  It arises because the Court of Appeal has now awarded indemnity costs to the plaintiffs in respect of the prosecution of the appeal and we say that it would be appropriate if special leave is refused to make a similar order in relation to costs of this application.

Those are our reasons, if your Honours please.

GAUDRON J:   Thank you.  Yes, Mr Molomby.

MR MOLOMBY:   May it please the Court.  My friend focused a lot of his argument of the merits of what Justice Giles said in the Court of Appeal.  Might I as a convenient focus for these issues take up some of those.

The question of the particulars is an important one and perhaps it goes to a particular refinement of language but, in our submission, the question is not when one looks at the particulars whether it related to the conduct of a government department in the sense of directed critically at the conduct ‑ ‑ ‑

GUMMOW J:   Could we just look at the actual text of the particulars?  Where do we see that?

MR MOLOMBY:   Yes, pages 19 and 20.  They are reproduced in other places, your Honour.  That is after amendment.  That is as they finally stood.

GUMMOW J:   Thank you.

MR MOLOMBY:   My point is, your Honours, the existence of the words “related to matters of public interest”.  In our submission, the conduct of the plaintiffs at trial was a matter in which the government had an interest.  This was all about government advertising going through the agency of the plaintiffs into ethnic community newspapers.  That is something which was supervised by the government, reviewed by the government, subject to change at the hands of whatever the responsible agency or department was.  That, in our submission, is something in which the government through its appropriate agency necessarily had an interest and, in our submission, it is a misreading of the particulars to confine them as narrowly as Justice Giles did to a criticism of the conduct of a government department.

GUMMOW J:   That is what we would be doing.  We would be sitting around construing these particulars, would we not?

MR MOLOMBY:   Your Honour, in my submission, the question of particulars in this case can be made a lot more than it is worth.  There is no suggestion of any difference that there would have been at the trial or any injustice that would have been caused if this question were taken otherwise.  Nobody has actually said that there would have been any practical difference and, in our submission, in substance and in justice there would not have been, but the matter was nevertheless within the particulars because it is a question of relating to something that the government had an interest in.  What Justice Giles did was in fact take the position my friend has addressed in relation to only one of the publications.

GUMMOW J:   Would not the whole appeal turn on what effect we gave to the phrase “related to” at the end of the day?

MR MOLOMBY:   Not if your Honour were with me on whether that would in reality make any difference in substance to the way the matter would have been conducted and in fact has been conducted throughout.  Even Justice Giles did not think it made a difference for the second publication, is the point I was just embarking on.  He took this point only in relation to the letter.  When one looks at how he considered the newspaper publication, in our submission, the error in his approach is patent.  That is in paragraph 131, page 310, where he concedes the existence of the occasion despite this difficulty.  So even he read the particulars as capable of containing an occasion of common law qualified privilege in relation to the newspaper article and the real mystery is how, given that, he ever came to be able to exclude it in relation to the letter.  Apart from half a sentence, they are the same document, they are about the same issues.  The newspaper article, as your Honours have probably picked up, just dropped a few words about bullying that was in the letter and that gave rise to an extra imputation which disappeared from the case anyway.

He then goes on, and paragraph 131 on page 310 is a very convenient focus of it, to consider this question of relevance in a way that makes it perfectly clear that he was not attributing to relevance the ordinary meaning of “logically connected with”, because he says first there may be an interest:

In satisfying the interest they could publish under the protection of privilege material defamatory of the plaintiffs, within limits marked by the relevance of any defamatory imputation to the occasion.

Thus far that could mean normal relevance, logically connected, but then he goes on to take into account things that do not weigh in the balance when one is looking at logical connection, for example, truth.  Something that is false can still be relevant to the issue.  Rationality, something that is irrational can still be relevant to the issue.

CALLINAN J:   I need some persuasion that something that is false is necessarily related to the issue.

MR MOLOMBY:   Your Honour, if one is making criticism of a government department, say, and asserting that it is misspending its funds by sending too many top level officers on first class overseas trips, that is relevant to the question of how the government disperses its funds whether or not it is true.

CALLINAN J:   There may be also cases in which falsity will demonstrate irrelevance.

MR MOLOMBY:   It which falsity will demonstrate – I am sorry?

CALLINAN J:   Falsity itself might demonstrate irrelevance in some cases.  The example you give is certainly one in which it is arguably relevant, even though false.  It is not difficult to think of others in which falsity would itself demonstrate irrelevance.

MR MOLOMBY:   In our submission, correct things can be relevant or irrelevant and incorrect things can be relevant or irrelevant, as can rational things, the next category selected by his Honour, and the manner of expression of what is published.  One can express in a sombre and contained manner something relevant, or in an outrageous, irresponsible manner something that is relevant.  It really has nothing to do with relevance.  There might be some probabilities hidden in it.

CALLINAN J:   It may have, Mr Molomby, it may have.

MR MOLOMBY:   In our submission, not, your Honour, in our submission, not.  Relevance is a question of looking at the topic, what is being discussed and is that connected with the matter of public interest or is the imputation something in which the publisher and the publishees share a common interest?  In this case, in our submission, that is overwhelmingly and clearly the case on the facts and that is really at the fundament of why, in our submission, the particulars in question are actually a bit of a red herring.  The facts of this case show clearly that the publisher and the publishees had a common interest in the particularised matters there of public interest and once that is established, as a matter of practicality and justice the debate is really over.

If it please the Court.

GAUDRON J:   We will adjourn briefly to consider the course we will take in this matter.

AT 10.28 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.36 AM:

GAUDRON J:   Having regard to the way in which the defence of common law qualified privilege was particularised in this case, the present matter is not a suitable vehicle in which to consider any point of principle relating to that defence.

In this regard, there may be reason to doubt that what was said by the House of Lords in Reynolds v Times Newspapers [2001] 2 AC 127 has any direct bearing on the defence of common law qualified privilege as it has developed in this country. Nevertheless, the present is not an appropriate case in which to explore that issue.

Accordingly, special leave is refused with costs.  We see no reason to award costs other than on a party-and-party basis.  Thus, the respondents’ application for indemnity costs is refused.

AT 10.37 AM THE MATTER WAS CONCLUDED