Where qualified protection provisions apply in defamation claims, issues of relevance and manner and extent of publication must be left to the jury where it is reasonably possible to conclude that the defamatory matter was not connected with the discussion relied upon.
Later decisions that cite Bellino v Australian Broadcasting Corporation
Decisions cited by Bellino v Australian Broadcasting Corporation
VINCENZO BELLINO v AUSTRALIAN BROADCASTING CORPORATION
F.C. 96/008
Number of pages - 59
Defamation [1996] HCA 47; (1996) 185 CLR 183
HIGH COURT OF AUSTRALIA
BRENNAN CJ(1), DAWSON(2), GAUDRON(3), McHUGH(2) AND GUMMOW(2) JJ
CATCHWORDS
Defamation - Qualified protection - Functions of judge and jury - Criminal Code (Q) s 377(8).
Defamation - Qualified protection - "subject of public interest" - Common
law meaning - Criminal Code (Q) s 377(8).
Defamation - Qualified protection - "in the course of or for the purposes
of" discussion - Initiating discussion - Relevance -
Criminal Code (Q) s
377(8).
Defamation - Qualified Protection - Discussion of a subject of public
interest - Whether for "public benefit" - Criminal Code (Q)
s 377(8).
Defamation - Qualified Protection - Good faith - Relevance - Manner and
extent of publication - Naming plaintiff - Criminal Code
(Q) s 377(8).
Criminal Code (Q) s 377(8).
Defamation Act 1889 (Q) s 17(8).
Defamation Act 1958 (NSW) s 17.
28:3:1996, CANBERRA
ORDER
1. Appeal allowed.appeal.
2. Set aside the order of the Queensland Court of Appeal dismissing the
3. In lieu of the said order of the Queensland Court of Appeal, order:new trial.
(a) that the appeal to that Court be allowed;
(b) that the matter be remitted to the Supreme Court of Queensland for a
DECISION
BRENNAN CJ. The respondent ("the ABC") telecast in its national "Four Corners" series a programme entitled "The Moonlight State" on 11 and 17 May 1987. The programme purported to expose corruption in the administration of the Queensland Police Force whereby protection was given, with the concurrence or connivance of State political figures, to persons controlling illegal drug trafficking, illegal gambling and prostitution. After referring to the position in Brisbane, in which Geraldo and Antonio Bellino, the brothers of the appellant Vincenzo Bellino, were named as being involved in these illegal activities, the programme contained passages relating to Vincenzo Bellino's activities in North Queensland. The more significant passages of the transcript taken of the programme are set out in the judgment of Dawson, McHugh and Gummow JJ and I need not repeat them.
2. The appellant, claiming that he was unlawfully defamed in the programme,
sued the ABC for damages for defamation in the Supreme
Court of Queensland.
The ABC pleaded the excuse provided for by s 377(8) of The Criminal Code (Q)
which reads:
"It is a lawful excuse for the publication of defamatory matter -
...
(8) If the publication is made in good faith in the course of, orfor the purposes of, the discussion of some subject of public interest, the public discussion of which is for the public benefit, and if, so far as the defamatory matter consists of comment, the comment is fair.
For the purposes of this section, a publication is said to be madein good faith if the matter published is relevant to the matters the existence of which may excuse the publication in good faith of defamatory matter; if the manner and extent of the publication does not exceed what is reasonably sufficient for the occasion; and if the person by whom it is made is not actuated by ill-will to the person defamed, or by any other improper motive, and does not believe the defamatory matter to be untrue."
"(a) organised crime and corruption in Queensland and/or allegationsmade in relation thereto;
(b) the existence of, and/or protection of, illegal activities,and/or allegations made in relation thereto;
(c) trafficking in illegal drugs and/or allegations made in relationthereto."
3. The appellant pleaded an absence of good faith in three respects: (i)
that the ABC was actuated by improper motive; (ii) that
the material broadcast
relating to the appellant was not relevant to the "matters by which the (ABC)
seeks to excuse the broadcast"
- that is, the discussion of the subjects
specified in the particulars, and (iii) that the manner and extent of the
publication of
that material "exceeded what was reasonably sufficient for the
programme". The trial judge (Mackenzie J) withdrew from the jury
both the
issue of relevance and the issue of manner and extent. His Honour put to the
jury and the jury answered the following questions:
"1. Q: Were the words and pictures published by the Defendant on'the Moonlight State' on the 11th and 17th days of May, 1987 defamatory of the Plaintiff?
A: Yes.
2. Q: If 'yes' to question 1 did the words and pictures published bythe Defendant on 'the Moonlight State' on the 11th and 18th days of May, 1987 mean:
...
(e) the Plaintiff was a person who either individually or as amember of a syndicate obtained protection from the police or other bodies?
A: Yes.
(f) the Plaintiff was a person who either individually or as amember of a syndicate was involved in the sale, manufacture, possession, cultivation and/or importation of dangerous drugs?
A: Yes.
(g) the Plaintiff was a person who either individually or as amember of a syndicate was immune from prosecution as a result of either political or police favour obtained either by bribery or corrupt practices?
A: Yes.
...
3. Q: Was the public discussion of the subject or subjects of publicinterest for the public benefit?
A: Yes.
4. Q: If 'yes' to questions 1 and 2, was the Defendant actuated byan improper motive to the Plaintiff in publishing the defamatory matter?
A: No.
5. Q: (a) What compensatory damages?
A: $750,000.
..."On those answers the ABC moved for judgment on the footing that it was lawful to publish the matter containing the imputations which the jury had found. The trial judge entered judgment for the ABC. The appellant's appeal to the Court of Appeal was dismissed by majority (Davies JA and Demack J, Macrossan CJ dissenting).
4. Davies JA upheld the trial judge's withdrawal of the issue of relevance
from the jury, saying:
"As to relevance, the structure of the programme was to present achronological account of allegations of corruption in the Queensland Police Force, to show the hierarchical structure of the corruption and to show, by the example of the Bellinos, how the structure extended from the Gold Coast through Brisbane to North Queensland. The allegation against the appellant was that he took a leading part in the drug trade and aspects of police corruption. The question is not whether it was necessary to name him but whether it was relevant to do so. As it was his family which made the connection between North Queensland and the south it was relevant. His Honour was entitled to withdraw that question from the jury."
5. Davies JA dismissed the objection that the issue of manner and extent had
been withdrawn from the jury, saying:
"There was no complaint here about the way in which the appellantwas named; it was the fact that he was which formed the basis of the complaint. Nor was any complaint made about the breadth of the publication. His Honour was therefore entitled to withdraw manner and extent from consideration by the jury."
6. Whether the appellant's argument is put in terms of relevance or manner
and extent, the thrust of his case was that the ABC could
not claim the
protection of s 377(8) for the publication of the part of the programme in
which he was named and in which the ABC
made the imputations found by the
jury. The appellant submits that his activities were not a subject of public
interest, the public
discussion of which was for the public benefit.
Macrossan CJ accepted the appellant's argument in these terms:
"Fundamental questions are whether the three topics particularisedby the respondent were, for present purposes, the relevant subjects and, if they were, was the matter published, which included the defamation of the plaintiff, relevant to them. ... Does the word 'relevant' in the last paragraph of s 377 mean 'has some connection in terms of topic dealt with' or does it go further and require that the defamatory aspect lies wholly within the bounds of a topic more exactly stated so that all of the material discussion must be the subject of public interest which it is for the public benefit to discuss. ... As will appear the second alternative is favoured.
...
Prior to the telecast referred to in the proceedings, there was norelevant public interest established in the affairs of the appellant....
There was no preceding discussion of the appellant's affairs goingon and for the defence to be available there would have been a need for this ... the result is that it should have been held below that no relevant privileged occasion arose and hence the defence of qualified privilege failed."
7. In the appeal to this Court, the appellant challenges the summing up of
the trial judge, his Honour's determination of all issues
arising under s
377(8) except those issues put to the jury in questions 3 and 4, and the
interpretation placed upon s 377(8) by the
trial judge and by the judgments in
the Court of Appeal.
8. The disparity of opinion in the Court of Appeal reveals the issues which
now fall for determination: first, must a "subject
of public interest"
falling within s 377(8) be constituted by the conduct or affairs of the person
defamed or, perhaps, of some other
person or may it be a general topic or
state of affairs the discussion of which does not necessarily import a
reference to the conduct
or affairs of any particular person? Secondly, must
there be some public interest in the subject prior to the publication of the
defamatory matter? And, thirdly, was the trial judge entitled to withdraw
from the jury the issues of relevance and manner and extent?
"A subject of public interest"
9. Sir Samuel Griffith, the draftsman of the Code and the antecedent
Defamation Law of 1889 (Q), intended s 377 to express the common
law of
qualified privilege. However, as Griffith CJ observed in Dun v Macintosh;
Macintosh v Dun (1), the Code's definition of "good
faith" may be "a little
harder on the publisher of a libel than the common law". A publication of
defamatory matter which is excused
by s 377 would be held by the common law to
be published on an occasion of qualified privilege. Qualified privilege is
based on
the protection with which the law clothes a defendant who, without
malice, publishes matter "in the discharge of some public or private
duty,
whether legal or moral, or in the conduct of (the publisher's) own affairs, in
matters where his interest is concerned": per
Parke B in Toogood v Spyring
(2).
10. No narrow view is taken in considering whether the publication containing
the defamatory matter was published on an occasion
of qualified privilege.
The universal principle on which qualified privilege is founded, as Willes J
said in Henwood v Harrison (3),
is that:
"the public convenience is to be preferred to private interests, andthat communications which the interests of society require to be unfettered may freely be made by persons acting honestly without actual malice, notwithstanding that they involve relevant comments condemnatory of individuals."
"The broad principle underlying qualified privilege at common law isthat occasions exist in which it is desirable from the point of view of public policy that communications should be made freely. This freedom should be given priority over the right of an individual to be protected against the loss of his reputation."
11. The judge, rather than the jury, has the function of determining the
subjects which the public is free to discuss. The reason
for entrusting this
function to the judge is stated by Willes J in Henwood v Harrison (8):
"It would be abolishing the law of privileged discussion, anddeserting the duty of the Court to decide upon this as upon any other question of law, if we were to hand over the decision of privilege or no privilege to the jury. A jury, according to their individual views of religion or policy, might hold the church, the army, the navy, parliament itself, to be of no national or general importance, or the liberty of the press to be of less consequence than the feelings of a thin-skinned disputant."
"Some expressions here used undoubtedly go beyond what was necessaryfor self-defence, but it does not, therefore, follow that they afford evidence of malice for a jury. To submit the language of privileged communications to a strict scrutiny, and to hold all excess beyond the absolute exigency of the occasion to be evidence of malice would in effect greatly limit, if not altogether defeat, that protection which the law throws over privileged communications."
"At common law it has been repeatedly said that a court should notbe quick to find evidence of malice in the terms of defamatory material published on a privileged occasion because so to do would restrict considerably, if not defeat, the protection which the law confers on privileged communications (see Laughton v Bishop of Sodor and Man; Adam v Ward). It has been said that where the words are utterly disproportionate to the facts this amounts to evidence of malice (Spill v Maule (11)), presumably on the footing that the extremity and exaggeration of the language is explicable only by reference to the existence of ill will in the defendant, but it does not suggest that a defendant is confined to saying what is strictly necessary to the occasion. The same comments may be made about the statutory concept of good faith to the extent to which it rests on ill will or other improper motive."
12. The privilege allowed at common law and prescribed by s 377(8) of the
Code is intended to strike the appropriate balance between
protection of
private reputation on the one hand and public utility or public welfare on the
other. The key concept in the striking
of this balance is "subject of public
interest". To ensure that the balance is rightly struck in the unlimited
variety of cases
that may arise, the key concept must be broad and flexible.
Thereby the judge is enabled to evaluate, in the light of contemporary
conditions, a plea that defamatory matter has been published in the discharge
of some legal, social or moral duty.
13. In Uren's Case (12), the subjects of public interest were pleaded in
extremely wide terms. Windeyer J said:
"At the trial the subject of public interest, in the course of thediscussion of which the defamatory statement was said to have been made, was loosely and widely defined. Presumably it would not have required much evidence to shew, if indeed it were seriously disputed, that the policies of the government concerning measures that should be taken for the military defence of Australia, and the views of different members of the Parliament on these topics, were a subject of current public discussion. This was obviously a subject of public interest. It would, I shall assume, have been open to his Honour to rule that the matter complained of was published in the course of that discussion. And a jury could not reasonably have found otherwise than that the public discussion of this subject was for the public benefit." (Emphasis added.)
14. The criterion for determining the privilege of an occasion - which s
377(8) of the Code expresses by reference to the public
interest in the
subject and the public benefit in discussing it - cannot be narrowly confined.
The basic principle which has informed
the law of qualified privilege since
Toogood v Spyring safeguards the freedom of public discussion on which public
welfare depends
to no small extent.
15. In the judgment of Dawson, McHugh and Gummow JJ, their Honours canvass a
line of fair comment cases and derive from them a concept
of "subject of
public interest" limited to the conduct of a person whose conduct inherently,
expressly or inferentially invites public
criticism or discussion. I am
unable, with respect, to accept that limitation. In London Artists Ltd v
Littler (15), Lord Denning
MR said in reference to a defence of fair comment:
"There is no definition in the books as to what is a matter ofpublic interest. All we are given is a list of examples, coupled with the statement that it is for the judge and not for the jury. I would not myself confine it within narrow limits. Whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on; or what may happen to them or to others; then it is a matter of public interest on which everyone is entitled to make fair comment."
16. As I read the authorities, the subjects of public interest are as broad
as Lord Denning stated them to be and as Windeyer J
accepted them to be in
Uren's Case. Take, for example, Cox v Feeney (16) where a newspaper published
a report of an inspector of
charities containing a letter reflecting on the
plaintiff in his management of a college. Cockburn CJ, in the course of his
directions
to the jury, said (17):
"There can be no doubt whatever that this institution, withreference to which these questions have arisen, is one of public concern. ... It appeals to the public, and holds out expectations with reference to the students whom their parents or guardians send there. It is, therefore, a public concern to the inhabitants of Birmingham and its district. That being so, the public have an interest in its government, its management, its discipline, and, what is essential, the management of its financial concerns. What is said with reference to its discipline, to its means of imparting instruction, to its means of fulfilling the objects for which it exists, have all of them great interest in the eyes of the people of the great town in which it exists." (Emphasis added.)
"let it not be supposed that the law imposes any undue restraintupon the freest and fullest comment upon all that passes in public courts of justice; for that the administration of justice should be made a subject for the exercise of public discussion is a matter of the most essential importance."
"But further, I am of opinion that this is no libel, for that it isprotected by the privilege of fair discussion on a matter of public interest, it not appearing that it was malicious."
"The management of the poor and the administration of the poor-lawin each local district are matters of public interest. In this management the medical attendance on the poor is matter of infinite moment, and consequently the conduct of a medical officer of the district may be of the greatest importance in that particular district, and so may concern the public in general." (Emphasis added.) In other words it was the subject of public interest which gave to the conduct of the medical officer its public importance. The claim of privilege was denied, but that was because the publication to the public at large of an ex parte allegation made at the meeting of the poor-law guardians - not a mere comment - exceeded what was reasonably sufficient for the occasion. Mellish LJ said (25):
"Such a communication as the present ought to be confined in thefirst instance to those whose duty it is to investigate the charges. ... I do not mean to say that the matter was not of such public interest as that comments would not be privileged if the facts had been ascertained. If the neglect charged against the plaintiff had been proved, then fair comments on his conduct might have been justified. But that is a very different thing from publishing ex parte statements, which not only are not proved but turn out to be unfounded in fact."
17. In South Hetton Coal Company v North-Eastern News Association (26), the
defendant published a criticism of the plaintiff colliery
company's inaction
in the face of insanitary conditions in the colliery village. Lopes LJ said
(27):
"But is the matter commented on one of public interest? This is aquestion for the Court. The attack upon the plaintiffs is in respect of the sanitary condition of their property, involving the health, comfort, and well-being of over two thousand human beings. The sanitary condition of this large population is placed under the control of a public body who do not interpose. Can it be said that this alleged state of things is not a matter of grave public interest? It may be that there is no case in the books holding a matter like this one of public interest; but I am clearly of opinion that a matter like this now before the Court may be made the subject of hostile criticism and of hostile animadversion, provided the language of the writer is kept within the limits of an honest intention to discharge a public duty. I agree with the Lord Chief Justice in holding this a matter of public interest."
18. In Dakhyl v Labouchere (28), the defendant described as "a quack" a
plaintiff who held himself out to be a specialist for the
treatment of
deafness, ear, nose and throat diseases. The plaintiff had been associated
with what the article described as "the
notorious Drouet Institute for the
Deaf". In the House of Lords, Lord Atkinson noted that the comment might not
have been warranted
by the facts stated in the article if the article were
construed as a personal charge against the plaintiff, but the plea of fair
comment ought to have been left to the jury in the event that the jury
construed it as a comment on the system of the Drouet Institute,
that system
being a subject of public interest. Lord Loreburn LC, taking the same
approach, said that it ought to have been left
to the jury to decide whether
"the libel went beyond a fair comment on the plaintiff and on the system of
medical enterprise with
which he associated himself, as a matter of public
interest treated by the defendant honestly and without malice" (29).
19. The fair comment cases naturally relate to comments on the conduct or
affairs of a plaintiff. Ex hypothesi, no defence of fair
comment is required
unless the defamatory imputation reflects on the plaintiff (30). Non constat
that the subjects of public interest
that are elements of the defence are
limited to the conduct or affairs of the plaintiff. Rather, it is by reason
of the involvement
of the plaintiff's conduct or affairs in, or as an aspect
of, a subject of public interest that a fair comment, made honestly and
without malice, is excused in the interests of public discussion of the
subject. Thus, in South Hetton Coal Company, Lord Esher
MR said (31) of the
criticism of the colliery company's neglect of village hygiene:
"I think that it related to so large a number of people, of such akind, to a district of such an extent, and to matters of such importance as to render it a matter of public interest that the conduct of the employers should be criticised."
20. Textbooks of authority (32) are agreed in describing subjects of public
interest in fair comment cases in terms which accord
with Lord Denning's
definition of matters "such as to affect people at large". Gatley's list
includes, but is not exhausted by,
"The public conduct of any man who holds,
or seeks, a public office or a position of public trust" (33). Added to this,
Gatley lists
subjects of public interest which are not focused on conduct -
subjects gathered under headings which include "Political and state
matters",
"Church matters", "The administration of justice", "The management of public
institutions" and "The administration of local
affairs by local authorities".
21. Of course, if the only or principal subject of a publication is the
conduct of a private citizen whom the publication defames,
the subject is not
readily classified as one of public interest so as to attract the protection
of qualified privilege to a publication
to the general public (34). Generally
speaking, the public interest is not advanced or protected by a general
publication of defamatory
matter touching the conduct or affairs of a private
individual that do not intrude into a public forum. If a defendant raises a
defence of qualified privilege in respect of the publication of such matter,
the width of the pleaded subject of public interest
(as well as the extent of
the publication) is material to the availability of the defence. The more
widely the subject of public
interest is pleaded, the more likely it is that
the public discussion of the subject is for the public benefit but the more
difficult
it may be for the defendant to resist the argument that defamatory
matter canvassing the conduct or affairs of the plaintiff is not
relevant to
that subject. If the subject of public interest is pleaded more narrowly, it
may be easier for the defendant to satisfy
the judge that such defamatory
matter was published in the course of or for the purposes of the discussion of
the subject, but it
may be more difficult for the defendant to show that the
public discussion of that subject is for the public benefit.
22. However that may be, in Uren's Case, which was governed by the analogue
of s 377 of the Code, the judgment of Windeyer J applies
the common law's
broad concept of "subject of public interest" in determining qualified
privilege under the statute (35). Neither
the text of that section nor, in my
respectful opinion, an analysis of authority reveals any reason for limiting
the concept to the
conduct or affairs of the plaintiff or some other person.
23. The question whether the subject of a publication is a subject of public
interest is for the judge to determine. But that is
not the only issue for
the judge to determine. The judicial task is "to determine all elements of (s
377(8)) except those that are
expressly declared to be matters of fact and
thus for the jury": per Windeyer J in Uren's Case (36). Section s 379
provides:
"Whether any defamatory matter is or is not relevant to any othermatter, and whether the public discussion of any subject is or is not for the public benefit, are questions of fact."
24. However, the judge does not rule on whether the defamatory matter was
published "in the course of, or for the purposes of, the
discussion of some
subject of public interest" as if those words stood in isolation. Although it
is a question of fact whether the
public discussion of a particular subject is
for the public benefit, the protection of s 377(8) is attracted only when the
public
discussion of the subject could be found by the jury to be for the
public benefit. Thus the elements of s 377(8) for determination
by the judge
are whether the defamatory matter was published (i) "in the course of, or for
the purposes of, the discussion" (ii)
of a "subject of public interest" (iii)
the public discussion of which could be found by the jury to be "for the
public benefit".
The third element is really subsumed into the question
whether the subject is truly one of public interest in the sense that the
subject must be one the public discussion of which is for the welfare of
society (38).
25. These elements correspond with the questions to be addressed by a judge
who rules on whether a publication is made on an occasion
of qualified
privilege at common law. At common law, when a judge rules that an occasion
is privileged, the question whether the
publication is in fact privileged
passes to the jury. In Pullman v Hill and Co (39), Lopes LJ said:
"A confusion is often made between a privileged communication and aprivileged occasion. It is for the jury to say whether a communication was privileged; but the question whether an occasion was privileged is for the judge, and that question only arises when there has been publication to a third party."
"In the course of, or for the purposes of, the discussion"
26. This part of s 377(8) raises for consideration two issues: the need for
discussion of the subject prior to the time of publication
and the possibly
discrete nature of the defamatory matter complained of when it is published as
part of a more general article or
broadcast.
27. In Loveday v Sun Newspapers Ltd (41), a relief worker who had been
dismissed by the Canterbury Municipal Council sued the town
clerk who,
responding to an allegation of victimisation made by the secretary of the
Canterbury District Unemployed Relief Council,
said that the relief worker had
engaged in conduct that was unsatisfactory. The allegation and response were
published by the defendant
newspaper. Citing the observation of Lord Hanworth
MR in Chapman v Ellesmere (Lord) (42) that a duty to communicate information
to the public "cannot arise in respect of a matter not yet made public at
all", Dixon J said (43) that, before the newspaper published
the controversy,
"no situation existed casting upon the newspaper company any duty to
communicate to anyone the rival views of the
secretary of the unemployed
relief council and the town clerk. It was simply news about a thing done by a
public body." Then, in
Uren's Case (44) Windeyer said:
"A matter is, I think, published in the course of the discussion ofsome subject of public interest when, as the learned trial judge in the present case said, a discussion of that subject is currently going on. This accords with what Latham CJ said in Loveday v Sun Newspapers Ltd (45), 'The press cannot itself make a matter one of public interest by publishing statements about it (Chapman v Ellesmere (46))': and with the remark of Dixon J in the same case (47) that, when a matter of public interest is spoken of, what is meant is a matter that has already become of public interest."
28. Section 377(8) thus extends its protection to publications on all
existing subjects of public interest, whether the public interest
is enduring
or has been generated in antecedent discussion. The particulars of "subjects
of public interest" in the present case
are examples of subjects of enduring
public interest. Corruption of police by persons engaged in criminal activity
and the political
sanctioning of corrupt police conduct are subjects of
enduring public interest and a publication of defamatory matter, if made for
the purposes of the public discussion of those subjects, is made on a
privileged occasion.
29. When the defamatory matter is sought to be excused as having been
published in good faith "for the purposes of, the discussion
of some subject
of public interest", the purpose is to be ascertained not by reference to the
defendant's state of mind but objectively
by reference to the relationship of
the defamatory matter to the subject of public interest. A similar test is
imported by the phrase
"in the course of", as Walsh JA said in Justin v
Associated Newspapers Ltd (48):
"There remains the question whether it could be held or found thatthe matter sued on was published 'in the course of' or 'for the purposes of' that discussion. I think it is clear that 'in the course of' does not signify merely a coinciding of the publication and the discussion in a temporal sense. There must be some real relationship or nexus between them. I am of opinion also that the question is primarily an objective one."
30. The relationship or nexus between the matter complained of and the
postulated subject of public interest is what warrants the
conferring of
qualified privilege on the occasion of the publication. The question is not
whether the imputation conveyed by the
defamatory matter is a subject of
public interest, but whether it is "in the public interest" (49) that the
matter containing the
imputation be published.
31. At common law, the relationship or nexus was described as "relevance".
The issue of relevance was first considered by the judge
in determining
whether the occasion was one of qualified privilege but the jury had also to
consider the same or a similar question.
That question arose for the jury in
determining whether, as a matter of fact, the defendant had honestly published
the matter for
the purpose of communicating information for the welfare of
society. Dixon J spoke of the dual role of "relevance" in Guise v Kouvelis
(50):
"The primary question for the Court is whether the occasion isprivileged. If the occasion is privileged other questions may arise and it is possible that they may be, or comprise, matter of law for the Court, though it is more likely that they will be questions of fact for the jury. The question whether the defamatory matter is or may be relevant to the occasion may arise in a form which the Court must decide. But it is for the jury to say under the issue of malice with what purpose the defamatory matter was published. That is to say whether the occasion was used for the purpose of the privilege is a matter for the jury".
"His Honour ... pointed out that the issue of relevance may arisetwice, first, as an element in the question whether the case falls within one of the categories mentioned in s 17 and, secondly, as an element in the statutory concept of good faith. Again, in my view the considerations to which his Honour referred do not justify the conclusion as a matter of statutory interpretation that it is for the jury to determine whether the conditions prescribed in s 17(a) to (h) (s 377(1) to (8)) are fulfilled."
"that it is always a question of law for the judge to determinewhether the conditions prescribed by the various paragraphs of s 17 are fulfilled, subject to the jury deciding any disputed issues of fact on which the resolution of the ultimate question may depend".
32. A particular problem arises when the matter complained of is merely a
part of a wider publication, the overall subject of which
is a subject of
public interest. A question then arises whether the matter complained of is
entitled to the protection which the
subject of public interest would
otherwise attract. The problem arose in Adam v Ward (54) where Lord Finlay LC
said:
"The privilege extends only to a communication upon the subject withrespect to which privilege exists, and it does not extend to a communication upon any other extraneous matter which the defendant may have made at the same time. The introduction of such extraneous matter may afford evidence of malice which will take away protection on the subject to which privilege attaches, and the communication on the extraneous matter is not made upon a privileged occasion at all, inasmuch as the existence of privilege on one matter gives no protection to irrelevant libels introduced into the same communication."
33. Lord Dunedin in Adam v Ward (55), perceiving that, in either of these
ways, defamatory matter might fail to acquire the privilege
otherwise
attracted to the publication as a whole, preferred to expand the occasion of
privilege to encompass the defamatory matter
and thus to protect the whole
publication unless the defamatory matter afforded proof of malice. He said:
"You have a communication issued on a privileged occasion; and ingremio of that communication are used words which are in themselves defamatory. What test is to be applied? On the one hand, it is said that, the occasion being privileged, the whole document is privileged, but that if in the document you find parts which are not really necessary to the fulfilment of the particular duty or right which is the foundation of the privilege on the occasion, then these parts may be used as evidence of express malice. In other words, it stands thus: Malice, which is of the essence of libel, is presumed from defamatory words. Privilege destroys that presumption. But the place of the implied malice which is gone may be taken by express malice which may be proved. It may be proved either extrinsically or intrinsically of the document, and such words in the document are apt as evidence. Thus Buckley LJ states as to the whole matter: 'There are two questions. The first whether the occasion was a privileged occasion, and if it was, then, secondly, whether there was any evidence of malice.'
On the other hand, it is said that it is not necessarily a questionof malice at all; that privilege applies to what is written and published in response to a duty or right; and that if anything is found in the thing published which is not reasonably appropriate to that duty or right, then privilege cannot extend to that. My Lords, I think it will be found that in most cases these are merely two ways of expressing the same point. But there is this to be said in favour of the former method, that it is a formula which as a test will fit most if not all cases, whereas the second would necessarily break down in a good many. For it could always be said with apparent force that it never can be necessary to incorporate in a statement made in response to a duty or right any defamatory statement which is not logically necessary to fulfil that duty or right."
"(i)f the defamatory statement is quite unconnected with andirrelevant 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."
34. In Australia, Lord Finlay's analysis appears to have commanded assent in
Code jurisdictions as well as at common law, as Walsh
JA pointed out in Justin
v Associated Newspapers Ltd (58). Thus, in Telegraph Newspaper Co Ltd v
Bedford (59), Starke J said:
"publication relating to matters affecting the public good maycontain defamatory statements having no relevance thereto and consequently falling outside the protection given by the statute. It is then a further function of the Judge under the Code to determine whether the defendant has published anything outside that protection."
35. In other words, the criterion of relevance which determines whether
defamatory matter is published "in the course of, or for
the purposes of" a
subject of public interest operates to determine whether s 377(8) protects
defamatory matter which is part of
an article or broadcast dealing with a
subject of public interest. If the matter complained of has no material
relationship to or
nexus with the subject of public interest that appears from
the other parts of the article or broadcast, it falls outside the scope
of any
privilege. Hence North J said in Truth (NZ) Ltd v Holloway (60) in a passage
cited by Windeyer J with approval in Uren's
Case (61):
"There is no principle of law, and certainly no case that we know ofwhich may be invoked in support of the contention that a newspaper can claim privilege if it publishes a defamatory statement of fact about an individual merely because the general topic developed in the article is a matter of public interest".
36. As Adam v Ward shows, once an occasion of qualified privilege is found by
the judge, at common law the plaintiff must show,
if he can, that the
defamatory matter was not published for the purpose of the privilege. In Guise
v Kouvelis (63), Dixon J said:
"since upon this issue the burden is upon the plaintiff, a questionof the sufficiency of evidence to sustain the issue, which, of course, is one for the Court, is a question whether the plaintiff has displaced, not whether the defendant has established, privilege for the communication. Whether or not the occasion gives a privilege is a question of law for the judge, but whether the party has fairly and properly conducted himself in the exercise of it is a question for the jury: per Lord Campbell CJ in Dickson v Earl of Wilton (64)."
Summary and conclusion
37. In a case governed by s 377(8) of the Code, the questions for
determination by the judge are:
(i) what is the subject of discussion in the publication?
(ii) was that subject a subject of public interest the publicdiscussion of which could be found to be for the public benefit at the time of publication?
(iii) did the defamatory matter complained of contribute to thediscussion of that subject?
(iv) that the public discussion of the subject was for the publicbenefit. If that question be answered affirmatively, the occasion is privileged. The onus is then on the plaintiff to satisfy the jury that -
(v) the defamatory matter was not relevant to the discussion of thesubject of public interest; or
(vi) the manner and extent of the publication of the defamatorymatter exceeded what was reasonably sufficient for the public discussion of the subject of public interest; or
(vii) the defendant was actuated to publish the defamatory matter byill-will to the plaintiff or by some other improper motive; or
(viii) the defendant believed the defamatory matter to be untrue.
38. In answering question (ii), a broad test is to be applied bearing in mind
the underlying notion that the subject be of such
a nature as to cast on the
defendant a legal, social or moral duty to make the communication and a
corresponding duty in the public
to receive it. Such duties may arise when the
topic is of legitimate concern to the public at large or to a substantial
section of
it (68). In answering questions (v) and (vi), the test is an
objective one. As question (vi) is independent of question (vii),
the Code
differs from the common law in so far as the common law treats "manner and
extent" merely as evidence of a defendant's malice:
see per Griffith CJ in
Dun v Macintosh (69). Before any of questions (v), (vi), (vii) or (viii) is
put to the jury, the judge must
be satisfied that there is evidence on which
the jury might reasonably find an answer for the plaintiff.
39. In the present appeal, the live issues arise in reference to questions
(iii), (v) and (vi). The conduct or affairs of the plaintiff
were not
themselves a subject of public interest at the time of the broadcast. Nor was
the programme "The Moonlight State" a mere
report of allegations made by third
parties; it was an expose of facts which the ABC published on the strength of
its own reporter's
investigations, albeit there were cautionary references
about acceptance of everything contained in the recited police reports.
The
fact that a police report had made allegations against the plaintiff was not
itself a subject of public interest and was not
capable of attracting
qualified privilege (70). The publication of the defamatory matter complained
of was to be protected, if at
all, only as a contribution to the discussion of
some wider subject. The wider subject was the corruption of police by persons
engaged
in criminal activity and the political sanctioning of corrupt police
conduct.
40. The relevant parts of the programme identified the plaintiff as "The
Marble Man", on the site of whose marble mine at Chillagoe
was suspected to be
a marijuana plantation and in whose camp a man wanted for burglary and
attempted rape was suspected to be. A
police visit to the site was proposed
by a Detective Sergeant Ross Dickson, who has since retired from the police
force, but the
proposal was countermanded by instructions from higher
authority. An instruction forbidding further drug investigations had been
received by Dickson in April 1984 and Dickson's questioning of the instruction
had gone unanswered by the Commissioner. An official
report by a Detective
Constable Jim Slade had identified the plaintiff as a senior member of the
Bellino family who were said to
be involved in a scheme for growing marijuana.
An anonymous police officer informed the ABC reporter that an officer of
police superior
to Slade had offered Slade a bribe in the name of the
plaintiff's brother, Geraldo Bellino. Although an allegation had been made
in
Parliament in 1981 that the three Bellino brothers, including the plaintiff,
were the "godfathers" of a mafia controlling drugs,
prostitution and gambling
rackets in Queensland, the Premier had opened their marble mine in 1983 and
the Government Party of that
time had received a $50,000 cash donation from
the Geraldo Bellino family. The programme recorded that the allegation of the
donation
was denied and that the plaintiff had denied any involvement in drug
deals, attempts to corrupt police or any business association
with his
brothers.
41. There is no doubt but that the ABC had a social or moral duty to report
the corruption of police and any apparent political
sanctioning of corrupt
police conduct in Queensland. It was a subject of legitimate interest to the
Australian public at large.
The allegations made against the plaintiff were
important parts of the programme for they tended to support the allegations of
the
corruption of police by the Bellino family and the securing of political
sanctioning of the corrupt police conduct. The defamatory
matter complained
of thus made a substantial contribution to the discussion of the subjects of
public interest which were the theme
of the programme. Question (iii) had to
be answered in the affirmative and it was so answered by the trial judge.
42. His Honour's answer was not itself an issue on appeal to either the Court
of Appeal or to this Court. The plaintiff objects
to the trial judge's failure
to identify precisely the subject of public interest in his directions to the
jury with respect to question
(iv). The plaintiff sought to have the
programme's need to identify the plaintiff by name drawn to the jury's
attention as a factor
bearing on the question. For that reason, the plaintiff
submitted that the third question put to the jury ought to have been in
these
terms:
"Was the public discussion of the plaintiff a matter of publicinterest for the public benefit?"
43. The plaintiff's argument both before the trial judge and on appeal
focused on two of those elements: relevance (question (v))
and manner and
extent (question (vi)). The trial judge held there was insufficient evidence
to allow either question to go to the
jury. In the Court of Appeal, Davies JA
held that the issue of relevance was rightly taken from the jury. His
Honour's reasons
have already been quoted. Demack J expressed his opinion
that the naming of the plaintiff was relevant to the particularised subjects
of public interest but he did not expressly hold that there was no evidence
fit to go to the jury on that issue. Macrossan CJ, who
would have allowed the
appeal on the ground that the defamatory matter was not published on an
occasion of qualified privilege, did
not have to reach a conclusion on the
sufficiency of evidence to go to the jury on the issue of relevance. The
question for this
Court is whether the conclusion of the trial judge and of
Davies JA that there was insufficient evidence to go to the jury was right.
In my opinion, it was.
44. The plaintiff's argument, in essence, is that the conduct and affairs of
the plaintiff were not subjects of public interest
and that the naming of the
plaintiff, being unnecessary for the programme's exposition of police
corruption, was irrelevant to the
subject of public interest therein
discussed. Or, at all events, it was open to a reasonable jury so to find.
But the circumstance
that the conduct and affairs of the plaintiff were not a
subject of public interest is not to the point. His identity was an integral
feature of the family network that was said to be at the heart of the police
corruption and, inferentially, of political non-intervention.
As Davies JA
said, the question was not whether it was necessary to name the plaintiff but
whether it was relevant to do so. Only
one answer was reasonably open on the
facts and that was unfavourable to the plaintiff. The trial judge was right
in not putting
a question on relevance to the jury.
45. Having regard to the seriousness of the subject discussed in the
programme and its significance to the Australian public, the
broadcasting of
the programme to an Australia-wide audience as revealing the results of the
ABC investigation of the subject could
not reasonably have been seen to be
excessive in manner or extent. Sometimes criminal conduct or conduct of a
reprehensible kind
can be reported under the protection of qualified privilege
only if the report is made to those authorities who have the power and
responsibility to act in response to a report of such conduct, as Purcell v
Sowler (71) illustrates. But the present case is unusual
for the very subject
of public interest was the alleged inability to secure responsive action to
criminal conduct from the State
authorities who were charged with maintaining
the rule of law. A public revelation of that state of affairs could not be
seen as
wanting in good faith because the public at large were informed of it.
Question (vi) could have been answered only in the defendant's
favour. It was
not suggested that the ABC did not honestly believe in the truth of the
imputations it was found to have made against
the plaintiff. And the jury
found that it was not actuated by ill-will or other improper motive in
publishing the defamatory matter
complained of.
46. I would not remit this matter for a new trial on the footing that the
subject of public interest must be confined to the conduct
of particular
people. The subject of public interest revealed by the programme was not
merely the conduct of particular corrupt
police officers or the conduct of
those who corrupted them but the climate or ambience of corruption which
allegedly infected the
police force and the alleged attitude of supine refusal
to intervene on the part of those with political authority. The programme
was
an attack on a corrosive culture rather than on an individual's conduct. It
was a state of affairs that constituted the subject
of public interest and,
indeed, that gave the programme its title of "The Moonlight State".
47. It follows that, substantially for the reasons stated by Davies JA, I
would dismiss this appeal.
DAWSON, McHUGH AND GUMMOW JJ. In 1991, the appellant, Vincenzo Bellino, sued the respondent, the Australian Broadcasting Corporation, in the Supreme Court of Queensland for damages for defamation in respect of imputations against him contained in a "Four Corners" program entitled "The Moonlight State". The action was tried by Mackenzie J and a jury. Although the jury found that the program had defamed the appellant and that his damages should be assessed at $750,000, his Honour entered a verdict for the respondent because the publication was protected by s 377(8) of the Criminal Code (Q) and the appellant had failed to establish that the publication was not made in good faith. An appeal to the Court of Appeal was dismissed. Pursuant to the grant of special leave, the appellant now appeals to this Court.
2. The questions in the appeal are whether the trial judge erred:
(i) in holding that, subject to the jury determining certainquestions of fact, the defence under s 377(8) was made out;
(ii) in holding that there was no evidence of lack of good faithwithin the meaning of s 377 because there was no evidence that the "manner and extent" of the publication exceeded what was reasonably necessary for the occasion or that the defamatory matter was not relevant to the matters that s 377(8) protected; and
(iii) in refusing to leave a question to the jury as to whether thepublication of the defamatory material was for the public benefit.
The program
3. The principal thesis of the Four Corners program was that, during the
administration of the then Police Commissioner, Sir Terrence
Lewis, Queensland
police officers had been and were continuing to receive bribes to protect
vice, gambling and drug trafficking operations.
After describing the
relationship between police and two major groups involved in prostitution and
illegal casinos in Brisbane (one
of which was alleged to involve the
appellant's brothers, Gerry and Tony), the program shifted its focus to far
north Queensland.
It was this and a later segment that gave rise to the
imputations that the jury found were made against the appellant.
4. The segment dealing with north Queensland commenced by referring to a
report prepared by a Detective Constable Jim Slade of the
Bureau of Crime
Intelligence about the drug trade in far north Queensland. A transcript,
which was before the jurors while they
viewed a video of the program, records
the comments of the reporter (Chris Masters) and the extracts of an interview
with a Detective
Sergeant Ross Dickson as follows:
"CHRIS MASTERSmorning meetings between a marijuana grower and someone known as 'The Marble Man.'
It (the report) tells of a number of incidents including early
...
The Report names members of the Bellino family in connection withthe alleged marijuana growing scheme.
FILM - Marble mining
CHRIS MASTERSfamily - Vincenzo Bellino. Unlike his Brisbane based brothers, Vincenzo Bellino's interests have remained in the North. He is now involved in the mining and exportation of marble from this Chillagoe mine.
The man referred to as 'The Marble Man' is a senior member of the
ROSS DICKSONwanted for burglary and attempted rape, and another man wanted for petty theft, but we also knew that they were growing a quantity of cannabis right? We didn't know how much. We suspected that it wasn't a great deal. We suspected that they probably had it in a small area for their own use, and ... all of a sudden, I was called over to the office and told 'the job is off]' I said 'Why, what's going on, you know, why is it off?' You know, naturally that's the first thing you ask, and I was just told they'd been instructed from Cairns that you're not to um ... go to this place, you're not to do anything there because its a business ... the mine, and the department does not think that they should be interfering with a man's business where it might bring him into disrepute.
We put together a job on a big mining camp and there was a man there
CHRIS MASTERS
What was the business?
ROSS DICKSON
It was a marble mine at Chillagoe.
CHRIS MASTERS
This is the mine run by the Bellino family is it?
ROSS DICKSONleast half a second."
Yes, 'cause that never ... the connection there never hit me for at
5. Later in the program there was further reference to the appellant:
"FILM - Tony and Gerry Bellino
CHRIS MASTERSlong way. Antonio and Geraldo were last successfully charged by police for offences which occurred ten years ago. In the meantime, they have attracted the attention of Parliament. In 1981, the late Kevin Hooper had this to say. 'It is a fact of life that the lucrative drugs, prostitution and gambling rackets in Queensland have now become a multi-million dollar industry reaching into all sections of Queensland life and controlled by a Queensland mafia. The godfathers of the mafia are Gerry, Tony and Vince Bellino.' Hooper also named others including Vic Conte.
In the last decade members of the Bellino family have also come a
FILM - Marble Mining
CHRIS MASTERSlater, Queensland's Premier, Sir Joh Bjelke-Petersen, was photographed at this occasion ... his opening of the Bellino's marble mine at Chillagoe. That was July 1983. Later that year, Kevin Hooper made further allegations in Parliament. Hansard records him quoting a letter claiming the Gerry Bellino family was the State's biggest operator of illegal casinos, massage parlours, escort agencies and unlicensed bars. It goes on to say ... 'It's frightening to think of the power that one man can have over senior police officers and worse still, members of State Cabinet.' The letter posed a final question, whether on September 8 that year, the National Party received a $50,000 cash donation from the Gerry Bellino family. The Nationals, and Gerry Bellino promptly denied the claim."
But the government, like the police, was unmoved. Indeed, two years
The legislation
6. At the relevant time, s 377 of the Code provided:
"It is a lawful excuse for the publication of defamatory matter -
...
(3) If the publication is made in good faith for the protection ofthe interests of the person making the publication, or of some other person, or for the public good;
...
(5) If the publication is made in good faith for the purpose ofgiving information to the person to whom it is made with respect to some subject as to which that person has, or is believed, on reasonable grounds, by the person making the publication to have, such an interest in knowing the truth as to make his conduct in making the publication reasonable under the circumstances;
...
(8) If the publication is made in good faith in the course of, orfor the purposes of, the discussion of some subject of public interest, the public discussion of which is for the public benefit, and if, so far as the defamatory matter consists of comment, the comment is fair.
7. For the purposes of this section, a publication is said to be made in good
faith if the matter published is relevant to the matters
the existence of
which may excuse the publication in good faith of defamatory matter; if the
manner and extent of the publication
does not exceed what is reasonably
sufficient for the occasion; and if the person by whom it is made is not
actuated by ill-will
to the person defamed, or by any other improper motive,
and does not believe the defamatory matter to be untrue."
Section 378 provided that the burden of proving the absence of good faith lies
upon the party alleging such absence, and s 379 stated
that whether defamatory
matter is relevant to any other matter and whether the public discussion of
any matter is for the public
benefit are questions of fact.
8. Section 374 provided that it was lawful, inter alia, to publish a fair
report of the proceedings of Parliament.
9. In answer to the appellant's statement of claim, the respondent pleaded
defences based on ss 374, 377(3), 377(5) and 377(8) of
the Code. For the
purposes of its defence under s 377(8), the respondent particularised the
following subjects as the subjects of
public interest, the public discussion
of which was for the public benefit:
"(a) organised crime and corruption in Queensland and/or allegationsmade in relation thereto;
(b) the existence of, and/or protection of, illegal activities,and/or allegations made in relation thereto;
(c) trafficking in illegal drugs and/or allegations made in relationthereto."
10. The learned trial judge held:
1. No defence of qualified protection under ss 377(3) or 377(5) wasavailable to the defendant but, subject to the jury determining whether the subject discussed was for the public benefit, the publication was protected under s 377(8).
2. Whether the respondent made the publication with an absence ofgood faith would be left to the jury because the jury could conclude that the respondent had an improper motive in making the publication by reason of evidence that it had carried out its research for the program recklessly.
3. In so far as the defamatory matter involved direct quotation ofthe proceedings of parliament, the defence under s 374 was made out.
11. A series of questions were put to the jury. Those relevant to this
appeal and the jury's answers were as follows:
"1. Q: Were the words and pictures published by the Defendant on'the Moonlight State' on the 11th and 17th days of May, 1987 defamatory of the Plaintiff?
A: Yes
2. Q: If 'yes' to question 1 did the words and pictures published bythe Defendant on 'the Moonlight State' on the 11th and 18th (sic) days of May, 1987 mean:
(a) that the Plaintiff was a member of a group referred to as 'asyndicate' or 'the syndicate' which was involved in criminal activities?
A: No
(b) that the Plaintiff was a person who either individually or as amember of a syndicate bribed or offered bribes to members of the police force?
A: No
(c) that the Plaintiff was a person who either individually or as amember of a syndicate bribed or offered bribes to members of political parties?
A: No
(d) the Plaintiff was a person who either individually or as amember of a syndicate was responsible for or engaged in female prostitution?
A: No
(e) the Plaintiff was a person who either individually or as amember of a syndicate obtained protection from the police or other bodies?
A: Yes
(f) the Plaintiff was a person who either individually or as amember of a syndicate was involved in the sale, manufacture, possession, cultivation and/or importation of dangerous drugs?
A: Yes
(g) the Plaintiff was a person who either individually or as amember of a syndicate was immune from prosecution as a result of either political or police favour obtained either by bribery or corrupt practices?
A: Yes
(h) the Plaintiff was a member of the mafia and further had aleadership role in that organisation as a godfather?
A: No
3. Q: Was the public discussion of the subject or subjects ofpublic interest for the public benefit?
A: Yes
4. Q: If 'yes' to questions 1 and 2, was the Defendant actuated byan improper motive to the Plaintiff in publishing the defamatory matter?
A: No."
12. Upon these answers, the learned trial judge held that there should be a
verdict for the respondent. He entered a judgment for
the respondent with
costs.
The respective functions of the judge and jury under s 377(8)
13. This Court has held that, because the defences under s 377 are the
statutory equivalents of the common law defence of qualified
privilege, the
judge must determine all elements of a defence based on the section except
those described as questions of fact (72).
Consequently, questions of good
faith and whether the public discussion of the subject of public interest is
for the public benefit
are matters for the jury (73). If the matters for the
judge's determination depend on disputed questions of fact, those questions
must also be determined by the jury (74). In Pervan v North Queensland
Newspaper Co Ltd (75), this Court also held that, where the
defamatory matter
is capable of being regarded as either fact or comment, it is for the jury to
determine what, if any, part of the
matter is comment and what is fact. If
the judge determines that a defence of qualified protection arises then, "the
precise occasion
and reason of the protection" having been "defined and
settled" (76), it is for the jury to determine whether or not that protection
is lost because of a lack of good faith, provided there is some evidence on
which they could reasonably make that finding (77).
A subject of public interest
14. Central to proof of a defence based on s 377(8) is the existence of a
"subject of public interest". That means that there must
be some act or
omission by some person or institution concerning a matter that "invites
public attention" (78). But the particulars
of the subjects of public
interest which the respondent provided in this case were not subjects of
public interest in that sense.
They were abstractions which did not purport
to identify the conduct of any actor or institution as having invited public
criticism
or discussion. The particulars were apparently provided on the
theory that s 377(8) protects a defamatory discussion even when the
subject
matter of the discussion is described at a very high level of generality that
has no relationship to the conduct of any particular
actor or agent. On that
view of the sub-section, the subject of public interest may be as wide and as
vague as one of the particulars
given in Australian Consolidated Press Ltd v
Uren (79) - "the world-wide conflict between Communism and non-Communism" or
the first
particular in this case "organised crime and corruption in
Queensland and/or allegations made in relation thereto". But although
at
least some implicit judicial support (80) can be found for that view, it
disregards what has traditionally been understood to
be a subject of public
interest in the law of defamation. Moreover, it has had the result that
judges have felt compelled to put
glosses on the natural and ordinary meaning
of the sub-section by requiring that the defamatory matter should be a
"contribution"
to the discussion of the subject and by querying whether a
person who initiates a discussion of a subject of public interest is protected
by the sub-section.
15. The concept of "a subject of public interest" was well understood in the
law of defamation when Sir Samuel Griffith introduced
the predecessor of s
377(8) into the law of Queensland. It was a concept that was and remains
basic to the common law doctrine of
fair comment on a subject of public
interest, a doctrine that entered the law of defamation about ninety years
before Sir Samuel
Griffith drafted the Defamation Act 1889 (Q) which contained
s 17(8), the predecessor of s 377(8) (81). In that branch of the law,
a
subject of public interest meant the actions or omissions of a person or
institution engaged in activities that either inherently,
expressly or
inferentially invited public criticism or discussion.
Fair comment on a subject of public interest
16. Initially, the law of fair comment was regarded as part of the newly
invented doctrine of qualified privilege - the nineteenth
century cases
contain numerous statements that the "defence" of fair comment was a privilege
that was defeated by malice. It was
not until the second half of the
nineteenth century that the doctrine of fair comment, like the doctrine of a
fair report of judicial
proceedings, came to be recognised as a "defence" that
was independent of the doctrine of qualified privilege. Moreover, the early
cases on fair comment contain few references to a "subject of public
interest". The "defence" was discussed in more concrete terms
by referring,
for example, to the "acts of public men" which concerned the public (82) or by
reference to specific classes of public
conduct (83). But by the second half
of the century, the courts had come to see all the various public activities
that gave rise
to the right of fair comment as simply particular instances of
a general right to comment on subjects of public interest.
17. Thus, in Turnbull v Bird (84), Erle CJ directed the jury:
"The defence, on the present occasion, comes under the last head, asa matter necessary to the protection of the public interests, or the exercise of a public right.
And the law is, that a man may publish defamatory matter of another,holding any public employment, if it is a matter on which the public have any interest, within the limits I will lay down, in accordance with decided cases.
'Every person has a right to comment on the acts of a public man,which concern him as a subject of the realm, if he do not make his comments the vehicle of malice or slander.'
The defendant, in this case, contends that he comes within thisrule; that he, as a subject of the realm, having an interest in the Foreign State papers, with which the plaintiff was entrusted, had a right to refer to, and comment on, the plaintiff's employment, and the plaintiff's character in that office."
18. In the following year in Popham v Pickburn (85), Mr Baron Wilde entered
judgment for the defendant and said:
"It was further contended, that this libel might be justified as amatter of public discussion on a subject of public interest. The answer is: This is not a discussion or comment. It is a statement of fact. To charge a man incorrectly with a disgraceful act, is very different from commenting on a fact relating to him truly stated, - there, the writer may by his opinion, libel himself rather than the subject of his remarks."
19. These cases show that, although the right was described as a right to
comment on a matter or subject of public interest, what
was meant was a right
to comment on the acts or omissions of persons whose conduct was a matter or
subject of public interest. The
so called "rolled up" plea brought out the
point when it said (86):
"In so far as they consist of allegations of fact, the said wordsare true in substance and in fact, and in so far as they consist of expressions of opinion they are fair comments made in good faith and without malice upon the said facts, which are a matter of public interest."
20. It is true that, in discussing the common law doctrine of fair comment,
lawyers frequently spoke about the right of fair comment
on such abstractions
as "the administration of justice", "political and state matters", "the
management of public institutions" etc,
but these were merely shorthand
statements for the proposition that there was a right to comment on the
actions or omissions of some
person or institution in the course of the
administration of justice, the management of public institutions and similar
subjects
which were subjects of public interest. The judgment of Cockburn CJ
in Woodgate v Ridout (87) clearly brings out the point that,
in describing a
subject such as the administration of justice as a subject of public interest,
it was the conduct of the individual
or individuals involved in particular
aspects of the administration of justice, and not some concept defined at a
level of generality
divorced from the conduct of individuals, that constituted
the subject of public interest. His Lordship said (88):
"(T)hat the administration of justice should be made a subject forthe exercise of public discussion is a matter of the most essential importance. But, on the other hand, it behoves those who pass judgment, and call upon the public to pass judgment, on those who are suitors or witnesses in courts of justice, not to give reckless vent to harsh and uncharitable views of the conduct of others; but to remember, that they are bound to exercise a fair, an honest and an impartial judgment upon those whom they hold up to public obloquy." (our emphasis)
21. Thus, under the common law any member of the public could comment on the
conduct of the lawyers participating in a criminal
or civil trial (89), the
conduct of a judge or magistrate in dismissing or upholding a claim (90) or
the evidence of witnesses (91).
Similarly, when the common law courts spoke
of political matters or the administration of public affairs or institutions
(92) as
subjects of public interest for the purposes of the law of fair
comment, they were speaking of the conduct of individuals participating
in
those activities as constituting subjects of public interest.
22. The common law courts held that when persons hold public office or
administer public institutions, they invite criticism and
discussion of their
conduct in carrying out that office or managing those institutions (93). The
conduct of such persons was therefore
a subject of public interest. In Kelly
v Sherlock (94), Mr Baron Bramwell said that "(a) clergyman with his flock, an
admiral with
his fleet, a general with his army, and a judge with his jury -
we are all of us the subjects for public discussion ... whoever fills
a public
position renders himself ... open to public discussion, and if any part of his
public acts is wrong, he must accept an attack
as a necessary though
unpleasant circumstance attaching to his position". In one of the early cases
on the subject, Mr Baron Parke
said that "(e)very subject has a right to
comment on those acts of public men which concern him as a subject of the
realm, if he
do not make his commentary a cloak for malice and slander" (95)
(our emphasis). Likewise when a person publicly exhibited his or
her work or
advertised or sold goods or services to the public, that person's conduct
while engaged in those activities was regarded
as a subject of public interest
(96).
23. Thus, the requirement that the comment be on the conduct or work of an
individual was basic to the law of fair comment on a
subject of public
interest. It could not be otherwise, because fair comment was a defence to a
defamatory imputation concerning
the plaintiff and the comment necessarily had
to be on the conduct or work of the plaintiff (97). This was the case even
when the
plaintiff was not identified in the article but claimed that
reasonable persons would identify him or her as the person who had engaged
in
the activity described in the defamatory publication (98). The matter was
accurately summarised in the first edition of Dr Blake
Odgers' work on the law
of defamation in discussing the defence of "Fair and bona fide Comment" (99):
"Every one of the public is entitled to pass an opinion oneverything which in any way invites public attention ...
True criticism differs from defamation in the followingparticulars:-
1. Criticism deals only with such things as invite public attention,or call for public comment.
2. Criticism never attacks the individual, but only his work. Suchwork may be either the policy of a government, the action of a member of Parliament, a public entertainment, a book published, or a picture exhibited. In every case the attack is on a man's acts, or on some thing, and not upon the man himself. A true critic never indulges in personalities." (emphasis in original)
Section 377(8)
24. Thus, when the law of defamation in Queensland was codified in the
Defamation Act 1889, a "subject of public interest" was understood
in the law
of defamation to refer to the conduct of a person engaged in activities that
either inherently, expressly or inferentially
invited public criticism or
discussion (100). That being so, it seems highly likely that that was the
meaning that the term was
intended to have in the predecessor of s 377(8). In
Bank of England v Vagliano Brothers (101), Lord Herschell declared that the
proper course in construing a code is to examine the language of the statute
and ask what is its natural meaning, uninfluenced by
any consideration derived
from the previous state of law. But his Lordship went on to say that, if a
provision is of doubtful import,
resort to the previous law is perfectly
legitimate. He also said (102) that, if words in a code have previously
acquired a technical
meaning or been used in a sense other than their ordinary
one, the same interpretation may be put upon them in the code. It may be
debatable whether the term "subject of public interest" had acquired a
technical meaning in the law of defamation by 1889 (103).
But it was a term
used in a special sense to describe the conduct of a person whose conduct
invited public criticism or discussion.
That being so, it is perfectly
legitimate (104) to give the words "subject of public interest" the same
meaning in s 377(8) that
they had, and still have, in that branch of the
common law of defamation known as the doctrine of fair comment.
25. It is true that the words "and, if so far as the defamatory matter
consists of comment, the comment is fair" were not in the
predecessor of s
377(8) when Sir Samuel Griffith introduced that provision into the law of
Queensland in 1889. They were added to
the provision in 1899 when s 377(8)
was given the form that it had when this action was heard. But we do not
think that fact provides
any sound basis for concluding that the term "subject
of public interest" in s 377(8) or its predecessor was not intended to have
the meaning that it had acquired in the law of fair comment. In any event, it
is the meaning that the term had in 1899 when s 377(8)
was enacted which is
relevant. The fact that Sir Samuel Griffith specifically included the fair
comment limb in s 377(8) in the
1899 Code tends to strengthen the view that
the associated term "subject of public interest" was intended to have the
meaning that
it had in the common law doctrine of fair comment.
26. Accordingly, s 377(8) protects the publication of a defamatory imputation
made in the course of or for the purposes of discussing
the conduct of any
person whose conduct, inherently, expressly or inferentially, invites public
criticism or discussion. Thus, the
discussion of the conduct of any person
holding public office (105), participating in the administration of justice or
public affairs,
offering goods or services to the public or otherwise engaging
in public conduct that invites public criticism or discussion comes
within the
protection of s 377(8) (106).
27. For the purpose of s 377(8), the subject of public interest need not be
concerned with the conduct of the plaintiff. While
the defamation must be
published in the course of or for the purposes of a discussion of the conduct
of some person or institution
that invites public criticism or discussion and
the conduct of the plaintiff will often, perhaps usually, be the subject of
that
discussion, the conduct of some other person that is a subject of public
interest can also found a defence under s 377(8). If the
defendant establishes
that the imputation concerning the plaintiff was made in the course of or for
the purposes of a discussion
of that conduct of that other person and any
comment was fair, the defence is made out unless the jury finds that the
publication
was not made in good faith or that the public discussion of the
subject of public interest was not for the public benefit. However,
one issue
under good faith is whether the defamatory imputation was relevant to the
discussion of the subject of public interest.
Consequently, whether the
subject of public interest be the plaintiff's own conduct or that of somebody
else, the defamatory imputation
will not be published in good faith for the
purpose of s 377(8) unless it was relevant to the discussion of the subject of
public
interest.
28. If the meaning attributed to "a subject of public interest" by the common
law doctrine of fair comment is applied to that term
in s 377(8), it makes
sense of the sub-section and strikes an appropriate balance between protection
of reputation and freedom of
discussion. On the one hand, it prevents a
defendant from relying on the defence of qualified protection for every
defamatory statement
that can in some way be related to a topic of public
importance. On the other hand, it ensures that, provided good faith exists,
the publication of an allegation of defamatory conduct will generally be
protected in circumstances where the common law would give
protection to a
fair comment on that conduct if the facts alleged were true. Seen in that
light, s 377(8) was an evolutionary, and
not radical, development of the
existing common law. It explains Sir Samuel Griffith's statement about the
sub-section in the debate
on the Defamation Bill (107):
"That, Mr Speaker, I have never seen formulated in that form, but Ithink substantially it may be said to be a statement of what the law is. On that point the law is uncertain, but I believe that really is the law. At any rate, if it is not the law, it ought to be so."
The subjects of public interest
29. In the present case, there were a number of subjects of public interest
which were the subject of discussion, but they were not
those particularised
by the respondent; at all events they were not the wide abstractions that
constituted the respondent's particulars
(108). The administration of the
police force by the Commissioner of Police and the performance of their duties
by the various police
officers who were identified, expressly or by necessary
implication, however, were plainly subjects of public interest that were
discussed in the program. Each of those persons held a public office, and his
or her conduct in executing the duties of the office
was a subject of public
interest that could be the subject of fair comment at common law.
Consequently, if in the course of or for
the purposes of discussing their
alleged conduct, the respondent published matter that was defamatory of the
appellant, s 377(8)
protected the defamatory publication provided the
discussion was for the public benefit and the publication was not made with an
absence of good faith.
30. In the context of the imputations which the jury found were published of
and concerning the appellant, the most immediately
relevant subjects of public
interest were the alleged conduct of the police officers who had directed that
no action be taken against
the activities at the Chillagoe mine and the
alleged conduct of the officers who had failed to act on the Slade Report.
Those officers
were not named, but they were identifiable to those who had
knowledge of the extrinsic facts that would identify them. Their performance
of their duties was, therefore, a subject of public interest which could found
a defence based on s 377(8). Similarly, the administration
of the Queensland
police force under Sir Terrence Lewis, although more removed from the
imputations against the appellant than the
conduct of the officers more
directly involved, was a subject of public interest that could found a defence
based on s 377(8).
The discussion of a subject of public interest
31. Once it is understood that a subject of public interest for the purpose of
s 377(8) is concerned with the actions and omissions
of a person engaged in
activities that invite public criticism or discussion, it almost necessarily
follows that the defamatory publication
may itself initiate a discussion for
the purpose of the sub-section. It is not necessary that there should be an
existing discussion
of the subject before a publication attracts the operation
of s 377(8) or that the defamatory matter should be published in the course
of
or for the purposes of a public discussion of that subject. In Uren (109),
however, Windeyer J said:
"A matter is, I think, published in the course of the discussion ofsome subject of public interest when, as the learned trial judge in the present case said, a discussion of that subject is currently going on."
32. Perhaps Windeyer J did not mean to indicate that the sub-section applied
only to existing discussions. His remarks were made
in the context of whether
a matter must be a matter of public interest prior to publication. It may be
that the statement of his
Honour was also directed to that issue and was not
intended to deal with the discussion issue. But, with great respect to his
Honour,
if he did intend to hold that a defamatory publication that initiates
a discussion of a subject of public interest is not protected
by s 377(8), he
placed an unnecessary gloss on the sub-section.
33. His Honour's statement also seems to assume that a citizen cannot rely on
s 377(8) as a defence unless there has been a public
discussion of the subject
of the public interest. As a result, defendants who rely on s 377(8)
frequently tender numerous media
items to prove that the subject of public
interest - usually identified by a vague and general particular - has been the
subject
of a public discussion. Both the history of the law of fair comment
and the text of the sub-section give no support for the conclusion
that the
defendant cannot rely on s 377(8) unless there has been a public discussion of
the subject of public interest.
34. At common law, any citizen has a right to comment upon a subject of
public interest. The right is not one that is a peculiar
privilege of the
press (110). A citizen does not have to wait until the public discussion of a
subject of public interest commences
before he or she can make a lawful
comment on the conduct of a person or institution whose activities are a
subject of public interest.
The text of s 377(8) proceeds on the same
assumption. It draws a distinction between the discussion and the public
discussion of
the subject of public interest. In its natural and ordinary
meaning, it can protect the private as well as the public discussion
of a
subject of public interest as long as the public discussion of that subject is
for the public benefit. Thus, it can protect
a private discussion between
friends. Such a discussion of a subject of public interest will satisfy the
discussion requirement
of s 377(8), whether or not there has been a prior or
public discussion of that subject. Because s 377(8) is a defence to the
publication
of defamatory matter, it necessarily assumes that there will be at
least one other person who is a party to the discussion. But
apart from that
requirement, the natural and ordinary meaning of the word "discussion" where
it first appears in s 377(8) does not
require a public discussion. In Justin v
Associated Newspapers (111), Walsh JA was prepared to assume the protection
given by the
sub-section "applies to the first statement originating a
discussion", and, in our view, that assumption was correct.
35. We are unable to accept the argument that the presence of s 377(5) in the
Code provides a ground for concluding that s 377(8)
does not protect an
initiating discussion. Each of those sub-sections has a very different
purpose and, ordinarily, a very different
application. No doubt occasions may
arise where each of them will provide a defence to the same publication. But
there is nothing
unusual in that situation, so far as this Code is concerned.
Thus, the defence of publication for the public good under s 377(3)
will
frequently be available in situations where the publication is protected by
one or more of the other sub-sections of s 377.
Similarly, since the decision
of this Court in Pervan (112), a fair comment may be protected by both s
377(8) and one or more of
the fair comment defences provided by s 375. But,
independently of these considerations, s 377(8) is concerned with the
discussion
of subjects of public interest, the discussion of which is for the
public benefit, while s 377(5) is concerned with any subject that
a person has
such an interest in knowing the truth about that the publication of the
defamatory matter is reasonable under the circumstances.
If s 377(5) was the
only protector of an initiating discussion, some initiating discussions of
subjects of public interest would
not have qualified protection because the
person hearing or reading the defamatory matter did not have such an interest
in knowing
the truth about the subject of information as to make the
publication reasonable in the circumstances. In this case, for example,
Mackenzie J held that the publication of the defamatory imputations concerning
the appellant was not protected by s 377(5).
36. Furthermore, once it is understood that s 377(8) is dealing with the
discussion of the conduct of some person or institution
that has invited
public criticism or discussion and applies to a private or initiating
discussion as well as a public discussion,
the practice that has grown up of
tendering media items (113) to prove an existing discussion will rarely be
necessary. It will
arise only in those cases where the defendant's
publication does not itself discuss the subject of public interest although it
is
published "in the course of or for the purposes of" such a discussion
(114).
In the course of the discussion
37. Hitherto, the courts (115) have taken the words "in the course of" the
discussion to mean that there must be more than a temporal
coincidence of the
publication with the discussion. Thus in Justin, Walsh JA said (116) that
there must "be some real relationship
or nexus between" the publication and
the subject. It appears that Walsh JA considered this meant that the
publication must be relevant
to the subject (117). But the definition of
"good faith" makes it clear that the relevance of the defamatory matter to the
discussion
of the subject of public interest is presumed and that the onus is
on the plaintiff to establish that the defamatory matter was not
relevant to
that discussion.
38. As long as judges take the view that the term "a subject of public
interest" in s 377(8) is wide enough to cover vague abstractions
such as the
"emergence of Indonesia as a military power" (118), it is understandable that
they will say, as Windeyer J said in Uren
(119), that the protection given by
s 377(8) "is for a contribution to a discussion upon a subject of public
interest, not for everything
that may be said about a person that can be in
some way related to a subject that is of public interest". Unless such a
limitation
is placed on the sub-section, it can protect any defamatory
imputation that can be related to a vague abstraction of general interest
to
the public even though that "subject of public interest" was not the real
object of the discussion. But once the term "subject
of public interest" is
given its historical defamation meaning, no good reason exists for requiring
that the defamatory matter be
"a contribution to a discussion" or,
independently of the good faith issue, have relevance to the subject of public
interest.
39. The requirement of "a subject of public interest", as so defined,
provides its own limitation on the scope of the sub-section.
If the
historical meaning is given to the term, a defendant will not be able to rely
on s 377(8) unless the conduct of some individual
or institution invites
public criticism or discussion. On that view, there is no need to distort the
meaning of that sub-section
by requiring the defendant to prove relevance or a
"contribution" to the discussion when the definition of good faith makes it
clear
that relevance is assumed in favour of the defendant and the ordinary
meaning of "in the course of" does not require that the defamatory
matter
should be a contribution to the discussion.
40. Defamatory matter, therefore, is published in the course of the
discussion of a subject of public interest when the defendant
publishes the
matter while discussing that subject of public interest (120). A mere
temporal coincidence between the publication
of the defamatory matter and the
discussion may not, however, always be enough to obtain a finding that the
defamatory matter was
published "in the course of" the discussion. Thus,
there cannot be "an accidental entry by the defendant into a discussion so
that,
in that sense, his intention in making the publication may be material"
(121). But that does not mean that there has to be a "relevant"
nexus or a
contribution to the discussion. The definition of "good faith" indicates that
any question of relevance or contribution
is a question of fact for the jury,
not for the judge. Ordinarily, a temporal relationship between the publication
of the defamatory
matter and the discussion of the subject of public interest
will establish that the matter was published in the course of the discussion
of the subject of public interest.
41. Nevertheless, in Telegraph Newspaper Co Ltd v Bedford (122), Starke J in
referring to s 377(3) of the Code said:
"But publication relating to matters affecting the public good maycontain defamatory statements having no relevance thereto and consequently falling outside the protection given by the statute. It is then a further function of the Judge under the Code to determine whether the defendant has published anything outside that protection."
42. In Justin (123) Walsh JA, dealing with the New South Wales equivalent of
s 377(8), felt constrained by the comments of Starke
J in Bedford to hold that
there was a test of relevance for the judge in addition to that arising under
the good faith issue (124).
His Honour noted the difficulty of such an
interpretation in light of the definition of good faith. However, he found it
unnecessary
to resolve the issue because in that case it would not have been
open to a jury to find the defamatory publication relevant in any
event (125).
Despite what Starke J said in Bedford, we cannot see how relevance is an issue
for the judge under s 377(8) or any other
sub-section in s 377 of the Code.
43. 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 the communication affords evidence of
malice and can destroy the privilege attaching to the relevant part.
As Lord
Finlay LC said in Adam v Ward (126):
"The introduction of such extraneous matter may afford evidence ofmalice which will take away protection on the subject to which privilege attaches, and the communication on the extraneous matter is not made upon a privileged occasion at all, inasmuch as the existence of privilege on one matter gives no protection to irrelevant libels introduced into the same communication."
44. In Bedford Starke J erred, however, in thinking that this approach to an
occasion of qualified privilege is relevant to s 377.
The words of the
section determine whether a particular publication receives qualified
protection. Each sub-section defines the
relationship between the publication
of defamatory matter and the particular circumstances which give qualified
protection. Nothing
is gained by introducing the concept of an "occasion" in
the common law sense into s 377. Indeed, like Walsh JA in Justin (127),
we
think that it is an error to see s 377 as being concerned with "occasions" of
privilege, notwithstanding that one part of the
definition of "good faith"
refers to the "occasion" and that some parts of s 377 are "occasions" in the
common law sense. Much of
the section is directed not to "occasions" but to
the purpose or purposes of a publication. Moreover, the words of a Code, such
as the Defamation Act 1889, should be interpreted in their ordinary and
natural meaning, uninfluenced by any considerations as to
the previous state
of the law unless some relevant part of the Code is ambiguous "or (has)
previously acquired a technical meaning,
or been used in a sense other than
(its) ordinary one" (128). Because the terms "subject of public interest" and
"fair comment"
were used in a special sense in the law of defamation in 1889
and 1899, it is legitimate to use those meanings in interpreting s
377(8).
But it is not legitimate to use the common law principle of relevance to be
found in the pre-1889 cases to place a gloss
on the words of qualified
protection in s 377, particularly when the section expressly codifies that
principle under the good faith
issue.
For the purposes of the discussion
45. The phrase "for the purposes of" indicates that s 377(8) also protects a
publication that merely facilitates the holding of a
discussion. Thus, a
defamatory brochure advertising a public meeting at which a subject of public
interest is to be discussed is
protected by this limb of s 377(8). However,
the protection given by this limb of s 377(8) has no relevance in this case.
A subject the public discussion of which is for the public benefit
46. Once the discussion of a subject of public interest is identified, the
jury must determine whether "the public discussion of
(that subject) is for
the public benefit". When s 377 and its predecessor were drafted, this
requirement may have formed a significant
limitation upon matters which might
give rise to the protection afforded by s 377(8), but it does not do so today.
The sub-section
calls for what is essentially a value judgment as to whether
the public would benefit from the subject being discussed publicly.
In the
great majority of cases, the public discussion of a subject of public interest
must be for the public benefit. But obviously
cases will arise where this is
not so. Discussions concerning the conduct of persons engaged in the
administration of justice will
not be for the public benefit if they are
contempts of court. Nor will discussions concerning the conduct of persons
involved in
national security matters be for the public benefit if the public
discussion of that conduct will jeopardise the nation's interests.
Occasionally, the discussion of a subject may be so contrary to the prevailing
mores of our society that it might be open to a jury
to hold that the public
discussion of the subject was not for the public benefit. Thus in the early
part of this century, the courts
would probably have held that it was open to
a jury to find that the public discussion of such matters as contraceptive
devices was
not for the public benefit (129). But, given the importance that
late twentieth century Australian society attaches to freedom of
discussion of
subjects of public interest, the occasions on which a jury could reasonably
find that such a discussion was not for
the public benefit must be very rare.
The grounds of appeal in this Court
47. In this Court, the appellant contends that the trial judge erred in
holding that the defence under s 377(8) was made out. Alternatively,
the
appellant contends that the learned judge erred in his rulings or directions
on the issues of relevance and manner and extent
in dealing with good faith
and in the formulation of question three which asked the jury whether "the
public discussion of the subject
or subjects of public interest (was) for the
public benefit"?
The defence under s 377(8)
48. The appellant argued that the Court of Appeal erred in holding (Davies JA
and Demack J, Macrossan CJ dissenting) that the defamation
was "relevant" to
the discussion of the subject or subjects of public interest and that,
consequently, the publication was protected
by s 377(8).
49. For the reasons that we have given, no question of relevance as such
arises in determining whether the defamatory matter was
protected by s 377(8).
The question which the learned judge had to decide was whether the defamatory
matter was published in the
course of the discussion of a subject or subjects
of public interest. Defamatory matter is defined to mean a defamatory
imputation
concerning the plaintiff (130).
50. The alleged conduct of the police officers who had directed that no
action be taken against the activities at the Chillagoe
mine and who had
failed to act on the Slade Report were all subjects of public interest.
Central to the Four Corners program was
a discussion of that conduct. It was
in the course of discussing that conduct that the defamatory imputations
concerning the plaintiff
were published. Subject to the jury's findings on
the issue of whether the public discussion of that subject or subjects was or
were for the public benefit, the defendant was entitled to the protection of s
377(8) unless the jury could and did find that the
publication of the
defamatory matter was not made in good faith. This ground of appeal fails.
Relevance
51. Alternatively, the appellant contends that there was evidence upon which
the jury could find that the publication of the defamatory
imputations was not
made in good faith because the imputations were not relevant to the discussion
of the subject or subjects of
public interest. At the trial, counsel for the
appellant submitted that the identification of the appellant was irrelevant to
those
matters which might excuse the publication because the discussion of the
subject of public interest could have been satisfied "by
identifying the facts
alone without revealing identities". His Honour rejected this submission
saying:
"As presently advised, I have some difficulty in seeing thatidentification of those involved is not relevant. That is not to say that the issue of revealing the plaintiff's identity may not need to be considered in relation to other aspects of s 377."
52. His Honour was correct in ruling that there was no evidence upon which
the jury could find that the defamatory matter was not
relevant to the
discussion of the subject of public interest. It is beside the point that the
respondent might have presented its
program in a different way without
identifying the appellant. The issue is whether the publication of the
defamatory imputations
was relevant to the discussion of the subject or
subjects of public interest. It is apparent that his Honour accepted the
respondent's
formulation of the subjects of public interest. For the reasons
we have given, his Honour erred in doing so. But that is of no importance
because the imputations concerning the appellant were clearly relevant to
those subjects of public interest that we have identified.
They were basic to
the discussion of the conduct of police officers. The defamatory imputations
in this case were at the heart
of the discussion of the subjects of public
interest that were discussed in the program. The jury could not reasonably
find that
the defamatory imputations were not relevant to the discussion of
the conduct of the police officers or the administration of the
police force
under Sir Terrence Lewis. The learned trial judge was, therefore, correct in
withdrawing the issue of relevance from
the jury. These grounds of appeal
must be rejected.
Manner and extent
53. The appellant contends that it was open to the jury to find that the
publication was not made in good faith because the manner
and extent of the
publication went beyond what was reasonably sufficient for the occasion. The
learned trial judge held that, if
the publication was otherwise within the
protection of s 377(8), nothing in the manner or extent of publication took it
outside that
protection. In the Court of Appeal, Demack J did not deal with
this issue in his reasons, but Davies JA did, and his Honour held
that naming
the appellant could not constitute an excessive manner of publication because
this was not the way in which either manner
or extent had been dealt with in
the cases (131). Once the true nature of a subject of public interest for the
purpose of s 377(8)
is understood, however, we think that his Honour was
mistaken in rejecting this contention of the appellant.
54. In his pleadings, the appellant alleged that the manner or extent of
publication was excessive simply because the program identified
him by name.
In this Court, his claim is more restricted. The appellant contends that the
extent of publication was excessive because
it "was open to the jury to find
that it was excessive to publish to a national audience such grave allegations
in a form which named
the Appellant". We think that the appellant was mistaken
to restrict his case in the way that he does in this Court, but it makes
no
difference to his entitlement to a new trial.
55. Once it is understood that it was the conduct of the various police
officers that was or were the subject or subjects of public
interest, it was
open to the jury to hold that naming the plaintiff was unnecessary and that,
accordingly, the extent of the publication
exceeded what was "reasonably
sufficient for the occasion". It was the discussion of the conduct of the
police officers that was
the "occasion" for the purpose of applying the
"manner and extent" element of the issue of good faith. A reasonable jury
could conclude
that that subject could have been fully discussed without
naming and ensuring the defamation of the plaintiff. Of course, the plaintiff
may still have been defamed if he had not been named. To people who knew of
his connection with the Chillagoe mine, he would have
been defamed even if he
had not been named and no reference had been made to "the Marble Man". But if
the program had not named
the appellant, the great majority of viewers would
have learnt of the corrupt conduct of the relevant police officers - which was
the subject of public interest - without having the appellant defamed to them
(132). Of course, it was also reasonably open to the
jury to find that naming
the appellant did not exceed what was reasonably sufficient for the occasion.
The jury might have thought,
for example, that the full extent of corruption
in the administration of Sir Terrence Lewis could not be properly understood
without
naming each of the Bellino brothers and thereby revealing the
connection between the activities of the appellant in north Queensland
and
those of his brothers in southern Queensland. But this choice was a matter
for the jury.
56. In addition, one segment of the program portrayed the "Marble Man" at
night delivering a box that apparently contained seeds
for growing marijuana.
It was open to the jury to conclude that this segment - which dramatically
reinforced the imputation that
the appellant was engaged in the cultivation of
illegal drugs - went beyond what was reasonably sufficient to discuss the
subject
of public interest: the conduct of the relevant police officers.
57. Another segment of the program also showed the then Premier of the State
opening the marble mine at Chillagoe and, in the context
of allegations of
political corruption, supported an imputation that the appellant had a corrupt
relationship with politicians.
Although the jury negatived any imputation
that the appellant had bribed or offered bribes to members of political
parties, it found
that the program imputed that the appellant "was immune from
prosecution as a result of either political or police favour obtained
either
by bribery or corrupt practices". If, as we think is the case, the jury could
reasonably find that the program's use of the
Chillagoe mine opening and the
Premier's involvement in it went beyond what was reasonably sufficient for the
occasion, that aspect
of the publication should also have been left to the
jury on manner and extent.
58. For the above reasons, the learned trial judge erred in refusing to leave
manner and extent to the jury. The verdict and judgment
for the respondent
must be set aside.
Public benefit/question three
59. The appellant also contends that question three was not formulated
correctly. The appellant asked the judge to formulate a question
which asked
whether the publication of material concerning the appellant was for the
public benefit. He contends that the judge
erred in asking the jury to answer
question three and that neither the question nor its answer was relevant to
the issues in this
case. However, the question sought by the appellant is not
what s 377(8) and s 379 require. Section 377(8) distinguishes between
the
defamatory publication and the subject of public interest. It is the
discussion of the subject of public interest that must
be for the public
benefit, not the publication of the defamatory matter. Nevertheless, in
discussing the meaning of question three,
his Honour directed the jury that
the question of public benefit was a balancing exercise in which the effect of
the allegation on
the appellant had to be weighed against the public's
interest in knowing that the information exists. With great respect to his
Honour, this was not what s 377(8) and s 379 required. The question for the
jury was whether the public discussion of the subject
or subjects of public
interest was for the public benefit. Consequently, his Honour's direction was
in error, but it was an error
that favoured the appellant.
60. The learned trial judge also erred in failing to put separate questions
to the jury as to whether the discussion of each of
the subjects of public
interest that were pleaded was for the public benefit. In the Court of
Appeal, Davies JA said that, although
his Honour erred in failing to leave
separate questions, no reasonable jury could have concluded other than that
the discussion of
each subject was for the public benefit. No doubt this is
true if the subjects of public interest are defined in the vague way that
the
respondent defined them in its particulars, and it may be that the same
conclusion should be reached in respect of the subjects
of public interest
that we have identified. But since there must be a new trial, it is
unnecessary to pursue the matter.
Order
61. The appeal must be allowed with costs, the order of the Court of Appeal
set aside, and the appeal to that Court allowed with
costs and an order made
for a new trial of the action.
GAUDRON J. The appellant, Vincenzo Bellino, brought proceedings for defamation against the respondent, the Australian Broadcasting Corporation ("the ABC"), in the Supreme Court of Queensland. He claimed to have been defamed in a national television broadcast entitled "The Moonlight State". The action was tried by judge and jury, with the trial judge (Mackenzie J) formulating specific questions for the jury's determination. In consequence of the jury's answers to those questions, it was held that the broadcast was made on an occasion of statutory qualified privilege and judgment was entered for the ABC. The appellant appealed unsuccessfully to the Court of Appeal (Davies JA and Demack J, Macrossan CJ dissenting). He now appeals to this Court.
The television program
2. The general subject matter of "The Moonlight State" was corruption in the
Queensland police force, particularly police protection
of illegal gambling,
prostitution, and the supply of illegal drugs. The program had three general
theses or themes. The first was
that corruption was longstanding. The second
was that it extended from the top to the bottom of the police hierarchy. The
third
was that it was geographically widespread or, more precisely, that it
extended from the Gold Coast in the south to Cairns in the
north.
3. The program showed, amongst other things, illegal activities allegedly
conducted with police protection by the appellant's brothers,
Geraldo and
Antonio Bellino, in Brisbane. As well, the program gave an account of a
police investigation and report by Detective
Constable Jim Slade ("the Slade
report") which, it was said, revealed a number of meetings in far North
Queensland between someone
called "the Marble Man" and marijuana growers at
which "marijuana seeds (were) handed over along with instructions regarding
their
cultivation and ultimate distribution". A nocturnal meeting between
"the Marble Man" and another person was dramatised, in which
an actor playing
"the Marble Man" was shown handing over a box, ostensibly containing marijuana
seeds.
4. According to the program, the Slade report contained details of a meeting
in a Cairns hotel of "five Italians, stating they planned
to exert pressure on
known (heroin) dealers (in Cairns and Townsville) to bring the dealers under
their control". In this context,
it was acknowledged that the report "doesn't
pretend to be anything more than police intelligence" and that "police
intelligence
isn't necessarily fact". However, it was also said that
information from people at the centre of the drug trade in far North
Queensland
closely reflected much of what was contained in the report. The
program went on to reveal that the report named "members of the
Bellino family
in connection with the alleged marijuana growing scheme". And, in that
context, the appellant was shown at his marble
mine at Chillagoe in North
Queensland and identified as "the Marble Man" and, also, as the brother of
Geraldo and Antonio Bellino.
5. The program also contained an interview with a former police officer who
said that he had been instructed by his superiors not
to pursue an
investigation into the activities of certain persons working at the
appellant's mine who were wanted by the police in
relation to various
offences, and who were suspected of growing cannabis for their own use in a
small area of the mine. The program
went on to reveal the attempted bribery
of Det. Constable Slade by a superior officer, the bribe being given,
allegedly, in the name
of Geraldo Bellino. The program also detailed
allegations of large cash donations to political parties made by the "Gerry
Bellino
family", and showed photographs of the then Premier of Queensland
opening the "Bellino's marble mine".
6. Towards the end of the program, the presenter said that people associated
with the program had spoken to "a number of the people
mentioned" and then
went on to say:
"Mr Vincenzo Bellino, named as 'The Marble Man' denied anyinvolvement in drug deals or attempts to corrupt Queensland police. He also denied any business association with his Brisbane-based brothers, Geraldo and Antonio Bellino."
The defamatory imputations
7. As already indicated, specific questions were left to the jury. The
answers to those questions reveal that it was found that
the program was
defamatory of the appellant and that it bore the following meanings:
. that he "was a person who either individually or as a member of asyndicate obtained protection from the police or other bodies";
. that he "was a person who either individually or as a member of asyndicate was involved in the sale, manufacture, possession, cultivation and/or importation of dangerous drugs"; and
. that he "was a person who either individually or as a member of asyndicate was immune from prosecution as a result of either political or police favour obtained either by bribery or corrupt practices".
The pleadings and particulars, and the statutory provisions on which they were
based
8. The respondent did not claim that the defamatory matter was true. Instead,
it pleaded three defences of statutory qualified privilege
(133) under s 377
of the Criminal Code 1899 (Q) ("the Code"), namely, that the publication was
made for the public good; for the
purpose of giving information on a subject
which
its viewers had, or were reasonably believed to have, an interest in
knowing the
truth; and in the course of, and for the purposes
of, the
discussion of a subject of public interest. Only the third of those defences
is directly involved in this appeal. Nonetheless,
it is convenient to make
some reference to the first two defences, and to the
trial judge's rulings in
relation to them, so as to
make clear the elements of the third defence.
9. Since the date of the trial, several sections of the Code relevant to
these proceedings, including s 377, were reformatted and
renumbered. Then, in
1995, the provisions of the Code dealing with defamation were relocated in the
Defamation Act 1889 (Q) (134).
It is, however, convenient to proceed on the
basis that the relevant provisions of the Code remain as they were.
10. So far as it bears on the defences pleaded by the respondent, s 377 of
the Code provides (135):
"It is a lawful excuse for the publication of defamatory matter-
...
(3) If the publication is made in good faith ... for the publicgood;
...
(5) If the publication is made in good faith for the purpose ofgiving information to the person to whom it is made with respect to some subject as to which that person has, or is believed, on reasonable grounds, by the person making the publication to have, such an interest in knowing the truth as to make his conduct in making the publication reasonable under the circumstances;
...
(8) If the publication is made in good faith in the course of, orfor the purposes of, the discussion of some subject of public interest, the public discussion of which is for the public benefit, and if, so far as the defamatory matter consists of comment, the comment is fair."
"Any imputation concerning any person, or any member of his family,whether living or dead, by which the reputation of that person is likely to be injured, or by which he is likely to be injured in his profession or trade, or by which other persons are likely to be induced to shun or avoid or ridicule or despise him, is called defamatory, and the matter of the imputation is called defamatory matter."
11. The respondent particularised the subjects relied upon for its defences
under s 377(5) and (8) as:
"(a) organised crime and corruption in Queensland and/or allegationsmade in relation thereto;
(b) the existence of, and/or protection of, illegal activities,and/or allegations made in relation thereto;
(c) trafficking in illegal drugs and/or allegations made in relationthereto."
12. The appellant replied to the respondent's defences under s 377 by
pleading absence of good faith. "Good faith" is defined in
the concluding
words of s 377 in this way:
"For the purposes of this section, a publication is said to be madein good faith if the matter published is relevant to the matters the existence of which may excuse the publication in good faith of defamatory matter; if the manner and extent of the publication does not exceed what is reasonably sufficient for the occasion; and if the person by whom it is made is not actuated by ill-will to the person defamed, or by any other improper motive, and does not believe the defamatory matter to be untrue."
13. The appellant's particulars of want of good faith were far from precise.
It is, however, clear that he raised relevance, manner
and extent, and
improper motive and claimed, as well, that the respondent knew that the
material was untrue or did not care whether
it was true or false. In respect
of relevance, manner and extent, and improper motive, he complained that
rumour had been reported
as fact, that adequate enquiries had not been made
and that the appellant had been identified by name, whereas, by way of
contrast,
actors had been used to portray anonymous informants in other parts
of the program.
14. Section 378 of the Code imposes the burden of proving absence of good
faith upon the party so alleging and s 379 provides (138):
"Whether any defamatory matter is or is not relevant to any othermatter, and whether the public discussion of any subject is or is not for the public benefit, are questions of fact."
The trial judge's rulings, the summing-up and the jury's findings
15. It is now settled that the question whether a publication was made in good
faith is a question of fact for the jury, whilst the
question whether, good
faith apart, it was made on an occasion of statutory qualified privilege under
s 377 is, essentially, a question
of law to be determined by the trial judge
(139). However, it may sometimes be necessary for disputed questions of fact
to be determined
by the jury before the trial judge can rule whether or not
the occasion was privileged (140). And the jury must determine for the
purposes of s 378(8) whether the defamatory matter consists of fact or comment
(141), if that is in issue, and whether the public
discussion of the subject
involved is or is not for the public benefit (142).
16. In the present case, the trial judge ruled that the respondent could not
rely on its defences under s 377(3) and (5), but that,
subject to the question
whether public discussion was for the public benefit, it could rely on its
defence under s 377(8). His Honour's
reasons suggest that, in considering the
defences under sub-ss (3) and (5), he treated the allegations made concerning
the appellant
as the subject on which the ABC was providing information and
held that, because that was the subject concerned, the publication
was neither
for the public good nor for the purpose specified in sub-s (5). However, a
somewhat different approach was taken in
relation to the defence under sub-s
(8), his Honour indicating that the "essence" of the program was a matter of
public interest,
namely, "the systemic corruption of a police force", and that
that subject "was almost a perennial one".
17. On the question of good faith, his Honour ruled that, if privilege was
otherwise made out, the defamatory material was relevant
and manner and extent
were not excessive. He also ruled that there was no evidence that the
respondent believed the defamatory matter
to be untrue, but that there was
evidence on which the jury might find improper motive in so far as
"recklessness" might support
a finding to that effect.
18. The trial judge did not direct the members of the jury as to the precise
subject matter of the public discussion in the course
of which, or for the
purposes of which, he found the broadcast to have been made. Instead, he
informed them of the three subjects
on which the respondent relied, namely,
"organised crime and corruption ... and allegations related thereto ...
protection of illegal
activities and allegations related thereto (a)nd ...
trafficking in illegal drugs and allegations related thereto". His Honour
instructed
the jury that the question whether the public discussion,
presumably of those subjects, was for the public benefit was to be determined
by balancing "the effect of the making of most serious allegations against the
(appellant) ... against the public's interest in knowing
that information
exists that involves (him) in organised crime, protection of illegal
activities and trafficking in illegal drugs".
19. On the question of improper motive, the trial judge directed the jury
that it could find improper motive on the part of the
ABC if it found that
those associated with the program had acted recklessly, not caring and not
checking whether the defamatory material
was true or false, as opposed to
engaging in "a process of careful checking of the information and of making
considered judgments".
20. In answer to the specific questions formulated by the trial judge, the
jury found that "the public discussion of the subject
or subjects of public
interest (was) for the public benefit" and that the ABC was not "actuated by
an improper motive to the (appellant)
in publishing the defamatory matter".
Thus it was that there was judgment for the ABC.
The issues in the appeal
21. It was argued on behalf of the appellant, as it was at trial and in the
Court of Appeal, that the rulings and summing-up by the
trial judge
effectively denied any consideration of the substance of his case, namely,
that there was no occasion to identify the
appellant, a private individual,
and to publish serious and unsubstantiated allegations about him. More
precisely, it was argued
that the trial judge should not have ruled that the
ABC could rely on the defence under s 377(8) because consideration of that
defence
should have been confined to the appellant's alleged involvement in
organised crime and corruption. Alternatively, it was argued
that the question
of public benefit should have been considered by the jury on the basis that it
was the appellant's alleged involvement
in organised crime and corruption that
was the subject of discussion. Finally, it was argued that "good faith"
should have been
left to the jury on the basis that, by reason of the
identification of the appellant, a finding could be made that the defamatory
matter was irrelevant to a discussion of the matters particularised by the
ABC, and/or that the manner and extent of publication
was excessive.
Section 377(8): "some subject of public interest"
22. The expression "some subject of public interest" suggests similarity with
the common law concept of "matter of public interest",
an integral part of the
common law defence of fair comment. However, "matter of public interest" has
no fixed meaning for the purposes
of that defence. Rather, the position is as
stated by Lord Denning MR in London Artists Ltd v Littler (143):
"There is no definition in the books as to what is a matter ofpublic interest. All we are given is a list of examples, coupled with the statement that it is for the judge and not for the jury."
23. In their judgment in this case, Dawson, McHugh and Gummow JJ would
confine the expression "subject of public interest" in s
377(8) of the Code to
"the conduct of a person engaged in activities that either inherently,
expressly or inferentially (invite)
comment or discussion". This their Honours
would do by construing s 377(8) in the light of the common law defence of fair
comment
as it had supposedly developed at the time when the provisions of the
Code dealing with defamation were first enacted. There are,
in my view,
several reasons for not confining s 377(8) in this way.
24. One reason for not confining s 377(8) in the way indicated is that it
must be construed in accordance with the general principle
that codifying
statutes are to be construed according to their terms and, except for
ambiguities or technical terms, not by reference
to the pre-existing law
(144). The expression "subject of public interest", although imprecise, is
neither technical nor ambiguous.
And as a matter of ordinary language, it is
apt to extend to "a(ny) matter (that) is such as to affect people at large"
(145).
25. Another reason for not confining s 377(8) by reference to pre-existing
law is that there is no body of pre-existing law relevant
to the area in which
the sub-section operates. As Windeyer J pointed out in Australian
Consolidated Press Ltd v Uren, s 377(8) has
"no direct common-law ancestor"
and it is not the "statutory counterpart" of the common law defence of fair
comment (146). Fair
comment is a separate and distinct defence under s 375 of
the Code (147).
26. A third reason for not confining s 377(8) so as to exclude general topics
of public interest is that, in any event, the defence
of fair comment was not
confined in that way when the provisions of the Code dealing with defamation
were first enacted. Then, as
now, defamatory matter impugned the conduct of
individuals and, in that sense, the defence of fair comment applied only to
the conduct
of individuals. A defence of fair comment was available in the
case of individuals whose conduct was a matter of public interest
because they
exercised public functions (148) or because, in some other way, they submitted
their conduct or some aspect of it to
the public arena (149). But it was also
available in the case of individuals connected with more general matters of
public interest.
Thus, in South Hetton Coal Company v North-Eastern News
Association (150), Lord Esher MR said that a newspaper article on living
conditions in a colliery village related to a matter of public interest
because "it related to so large a number of people, of such
a kind, to a
district of such an extent, and to matters of such importance as to render it
a matter of public interest that the conduct
of the employers should be
criticised" (151).
27. In my view, the expression "subject of public interest" must be construed
according to ordinary usage and, when so construed,
is capable of broad
contemporary application. Thus, the matters particularised by the respondent
as subjects of public interest
for the purposes of its defence under s 377(8),
which for convenience can be referred to compendiously as organised crime and
corruption
in Queensland, are, in my view, "subject(s) of public interest" for
the purposes of that sub-section.
Section 377(8): "in the course of, or for the purposes of ... discussion"
28. In their ordinary and natural meaning, the words "in the course of ... (a)
discussion" import a temporal connection in the sense
that they require a
discussion that is "currently going on" (152). And, in my view, as a matter
of ordinary language, they also
require that the defamatory matter be a
contribution to that discussion, in the sense that it is connected with or
arises out of
the subject being discussed.
29. It was suggested in argument that, even if there was no ongoing
discussion, the broadcast might come within s 377(8) if its
purpose was to
initiate "the discussion of some subject of public interest, the public
discussion of which is for the public benefit".
That suggestion was made in
the context of the appellant's argument that, for the purposes of ruling on
the defence under s 377(8),
the trial judge should have confined himself to a
consideration of the question whether the broadcast was in the course of, or
for
the purposes of, the discussion of the appellant's alleged involvement in
organised crime and corruption. That argument loses much
of its significance
if s 377(8) operates in the manner suggested.
30. In Australian Consolidated Press Ltd v Uren, Windeyer J referred to two
judicial statements in support of his conclusion that
the words "in the course
of the discussion of some subject of public interest" require that there be "a
discussion of that subject
... currently going on" (153). One was the
statement of Dixon J in Loveday v Sun Newspapers Ltd (154) that the words
"matter of
public interest", at least in the context in which they were used
in Adam v Ward (155), refer to something that "has already become
of public
interest" (156). I do not think that, of itself, that statement throws any
real light on the question whether a publication
made for the purpose of
instigating the discussion of the very subject of the publication is a
publication "for the purposes of ...
discussion" within s 377(8).
31. In Loveday v Sun Newspapers Ltd, Dixon J was, I think, referring to a
subject which is of public interest because it, or some
aspect of it, has been
put into the public arena (157) or become the subject of public discussion
(158) before publication of the
defamatory matter. However, there are some
subjects which are inherently of public interest. So much was most recently
recognised
in this Court in the statement in Theophanous v Herald and Weekly
Times Ltd that "(t)he public at large has an interest in the discussion
of
political matters such that each and every person has an interest, of the kind
contemplated by the common law (relating to qualified
privilege), in
communicating his or her views on those matters and each and every person has
an interest in receiving information
on those matters" (159).
32. The words "for the purposes of ... the discussion of some subject of
public interest" are, in my view, capable of referring
to a publication which
is itself a discussion of a subject of public interest, particularly one that
is inherently so. It was not
suggested that the broadcast involved in this
case was, itself, a discussion of a subject of public interest. Rather, the
suggestion
was that it might be defended as having been made for the purpose
of initiating a discussion of the appellant's role in organised
crime and
corruption.
33. Standing alone, the words "for the purposes of ... the discussion of some
subject of public interest" are also capable of referring
to a publication,
which is not itself a discussion of a subject of public interest, but, rather,
a publication of factual statements
intended to initiate discussion when none
is under way. When read in context, however, the words do not bear that
meaning. The
sub-section clearly distinguishes between the publication in
question and the discussion which is the occasion giving rise to its
protection, indicating that it is concerned with an actual discussion and not
one that might occur as the result of the publication
in question. To some
extent, that is confirmed by the use of the definite article: the second limb
of s 377(8) would clearly have
a wider operation if the sub-section were to
provide protection for a publication made in the course of, or for the
purposes of,
a discussion of some subject of public interest.
The respondent's defence under s 377(8): the subjects of discussio n
34. As already indicated, s 377(8) distinguishes between the publication in
question and the discussion which, if the other requirements
of s 377(8) are
satisfied, affords protection to that publication. The focus of s 377(8) is
on the subject of the discussion, not
the subject of the publication in
question. Unless the publication is itself a discussion of a subject of
public interest, the discussion,
which may be private or public, must be
proved and proved to be under way at the time of the publication of the
defamatory matter.
35. Because the respondent did not defend its broadcast on the basis that it,
itself, was a discussion of some subject of public
interest and because s
377(8) does not extend to cover statements of fact intended to initiate
discussion of a subject matter of
public importance and, thus, cannot afford
protection for the broadcast on the basis that it was made for the purpose of
initiating
discussion of the appellant's role in organised crime and
corruption, the respondent can rely on s 377(8) only to the extent that
it
established an on-going discussion or discussions. The evidence in that regard
consisted of copies of newspaper articles, extracts
from Hansard and
videotapes of other television broadcasts. That evidence was not analysed in
any detail in this appeal. However,
it is clear that it disclosed some
discussion at some stage of illegal drug dealing and other criminal activity
in Queensland.
36. The question whether the discussion as proved was of the subjects
particularised by the respondent does not presently arise.
It is sufficient
for present purposes to observe that the proved discussion was of a broader
subject than the appellant's alleged
involvement in organised crime and
corruption. That being so, the appeal must fail to the extent that it was
argued that the trial
judge should have considered whether the latter was a
subject of public interest and should have directed the jury to decide whether
the discussion of that subject was for the public interest.
The respondent's defence under s 377(8): additional considerations
37. Although of no direct relevance to the outcome of the appeal, it is
convenient to note three further matters with respect to
the respondent's
defence under s 377(8). First, because the discussion or discussions relied
upon were concerned with general subjects
which, for present purposes, can be
identified as organised crime and corruption in Queensland, the jury's task,
so far as it concerned
the question of public benefit, was to consider the
nature of those subjects. It was not, as the trial judge instructed, to
balance
"the making of most serious allegations against the (appellant) ...
against the public's interest in knowing that information exists
that involves
(him) in organised crime, protection of illegal activities and trafficking in
illegal drugs". However, that exercise,
which was favourable to the
appellant, would have been appropriate had the subject of discussion been his
alleged involvement in
those activities.
38. The second matter to be noted is that the appellant's alleged involvement
in organised crime and corruption was not irrelevant
to the trial judge's
consideration of the defence under s 377(8). It was for his Honour to
consider whether the broadcast of material
asserting that involvement - more
precisely, the publication of the defamatory imputations - was made in the
course of, or for the
purposes of, an on-going discussion. As already
indicated, it was for his Honour to decide whether there was any discussion of
that
subject, whether the broadcast had a temporal connection with that
discussion and, also, whether the imputations were connected with
or arose out
of the discussion. However, it is by no means clear that that is what was
done.
39. The trial judge seems to have approached the question whether the
defamatory matter was published in the course of, or for the
purposes of, the
discussion of a subject of public interest, not by considering the defamatory
imputations, but by identifying the
"essence" of the program. As already
indicated, his Honour identified its essence as "systemic corruption of a
police force" and
seems to have considered that that was a "perennial" subject
of discussion. And it may be that his Honour made his ruling that the
respondent could rely on its defence under s 377(8) on the basis that systemic
corruption was the subject of discussion, rather than
the subjects
particularised by the respondent and, apparently, left to the jury for their
decision on the question of "public benefit".
However, the appellant made no
complaint with respect to these issues.
40. The third is a more general matter which, to some extent, emerges from
the two matters just discussed. It is necessary, if
a defamatory publication
is defended under s 377(8) of the Code for the subject of the discussion to be
"determined with some exactness"
(160). Precise identification is necessary
to enable the trial judge to decide whether the defamatory matter was
published in the
course of, or for the purposes of, the discussion of that
subject and, also, whether the subject is one of public interest. Precise
identification is also necessary to enable the jury to decide whether
discussion of that subject is "for the public benefit" and,
if it is in issue,
whether the defamatory matter is relevant to the discussion relied upon. As
already indicated, it may be that
the subjects of the discussion or
discussions proved by the respondent did not correspond precisely with those
which it particularised.
Good faith
41. It is clear from the terms of s 377 of the Code that good faith is a
separate element of the defences provided by that section.
And, in each case,
it is the publication - by definition, the defamatory imputations - which must
be made in good faith. This notwithstanding,
the issues which fall for
consideration by the jury on the question of good faith may overlap with those
to be decided by the trial
judge in ruling whether, good faith apart, the
occasion of its publication is protected (161). The degree of overlap may
vary according
to the particular sub-section relied upon and, also, according
to the facts of the particular case.
42. In the case of a defence under s 377(8), the question whether the
publication is relevant to the discussion in question, which
is for the jury,
will usually have much in common with one of the questions to be determined by
the trial judge, namely, whether
the defamatory matter was published in the
course of, or for the purposes of, that discussion. However, it cannot be
said, merely
because the trial judge rules that the publication was made in
the course of, or for the purposes of, that discussion, that there
is no
further issue of relevance for the jury's consideration. That approach would
deny effect to the words of s 377(8) which, as
already noted, make good faith
and, hence, relevance a separate component of a defence under that
sub-section.
Relevance
43. The general question, so far as relevance is concerned, is whether "the
matter published is relevant to the matters the existence
of which may excuse
the publication in good faith of defamatory matter". In the context of s
377(8), the precise question is whether
the defamatory imputations are
relevant to the on-going discussion of a subject of public interest, the
discussion of which is for
the public benefit.
44. In any context, "relevance" is a question of judgment and degree in all
but the clearest cases. It is, thus, not surprising
that little light has
been shed on what is involved when relevance is in issue, either for the
purposes of s 377 of the Code or for
the purposes of the common law relating
to malice. Earl Loreburn, speaking of the judge's function in relation to
common law qualified
privilege in Adam v Ward, used the following terms:
material "that is not relevant and pertinent"; "foreign matter"; and
"something
beyond what (is) germane and reasonably appropriate to the
occasion" (162). In so doing, his Lordship acknowledged that "(t)he facts
of
different cases vary infinitely" (163) and that the principle could not be
expressed in more definite terms. In my view, the same
imprecision applies
when relevance is in issue under s 377 of the Code, particularly in the case
of a defence under s 377(8). And
given that imprecision, relevance must be
left to the jury if it is reasonably possible for a person to form the view
that the defamatory
imputations, or any of them, are not relevantly connected
with the on-going discussion which is said to be the occasion for their
protection. Or to put the matter in terms which are, perhaps, more
appropriate to common law malice but which, nonetheless, have
some
significance in the context of good faith, relevance must be left to the jury
if it is possible to conclude that the occasion
of the on-going discussion was
used, not to further that discussion, but to intrude some separate or discrete
topic containing defamatory
matter.
45. It follows from what has been said as to the circumstances in which
relevance must be left to the jury that it is also necessary
for the trial
judge to identify the discussion and the subject involved in that discussion
before any ruling can be made on the question
whether it will or will not go
to the jury. As already indicated, there was no very precise identification
of the discussions and
the subjects of discussion in this case. This
notwithstanding, the matter can be approached on the basis that the
discussions were
public discussions and that the relevant subjects were the
general subjects particularised by the respondent and referred to by the
trial
judge in his summing-up.
46. The broadcast attributed serious criminality to the appellant -
criminality which, as the terms of the broadcast show, was denied
and was
known to be unsubstantiated except to the extent that enquiries by the ABC, or
its staff, of persons involved with illegal
drugs suggested otherwise. It
was, in my view, open to a properly instructed jury to conclude, by reason of
the identification of
the appellant and the substantial degree of prominence
given to him in the program, that the defamatory matter constituted a separate
and discrete topic lacking genuine connection with the public discussion of
the general subjects on which the respondent relied for
its defence under s
377(8). Or to put the matter another way, it was open to the jury to conclude
that the occasion was used, not
to further that discussion, but to intrude a
separate topic involving allegations of serious criminality on the part of the
appellant.
It follows that relevance should have been left to the jury.
Manner and extent
47. So far as manner and extent are concerned, the question under s 377 is
what is "reasonably sufficient for the occasion", which
translates, in the
case of a defence under s 377(8), to what is reasonably sufficient for the
discussion in question. As with relevance,
reasonable sufficiency raises
questions of judgment and degree, particularly in the context of a defence
under s 377(8). And, for
the reasons given with respect to relevance, manner
and extent should, in the case of a defence under s 377(8), be left to the
jury
if there is any reasonable basis for a conclusion that the publication
exceeded what was reasonably necessary for the discussion
in question.
48. If, as has been assumed, the discussion was a public discussion, it
cannot be complained that the broadcast was made to the
public at large.
However, the manner in which the allegations were made concerning the
appellant was capable of being regarded as
exceeding what was reasonably
sufficient for the on-going discussion of the general subjects upon which the
respondent relied. There
was, for example, the somewhat sinister impression
generated in the segment in which an actor portrayed "the Marble Man"
delivering
marijuana seeds; there was the statement that the ABC's researches
confirmed much of what was contained in the Slade report; and
there was also
the segment in which photographs were shown of the then Premier of Queensland
opening the marble mine at Chillagoe,
suggesting, in the context of
allegations of political corruption, an improper association between the
appellant and the then Premier.
It follows that, in my view, manner and
extent should also have been left to the jury.
Improper motive
49. The appellant made no complaint in this Court with respect to the way in
which improper motive was left to the jury. It is,
however, convenient to
note two matters. First, the jury was instructed to consider the ABC's
recklessness as evidence of improper
motive. "Recklessness" ordinarily
signifies the publication of false matter without regard to whether it is true
or false, with
the consequence that the publication is treated as though made
without belief as to its truth (164). At common law, this may support
a
finding of malice. And it may support a finding of improper motive under s
377, although ordinarily it will be more directly relevant
to the question
whether the publication was believed to be true.
50. The second matter to note is that the question put to the jury was
whether the ABC was "actuated by an improper motive to the
(appellant)". The
definition of good faith includes "ill-will to the person defamed" and "any
other improper motive". As a matter
of ordinary language, the definition does
not require that improper motive be directed to the person defamed (165). In
my view,
the matters which entitled the appellant to have the jury consider
relevance and manner and extent are also capable of supporting
a finding that
the defamatory matter was published, not to further the on-going discussion or
discussions on which the respondent
relied, but to advance its own thesis that
corruption extended from the Gold Coast in the south, to Cairns in the north.
Conclusion
51. The appeal should be allowed with costs; the order of the Court of Appeal
should be set aside and, in lieu thereof, it should
be ordered that the appeal
to that Court be allowed with costs. Although the appellant has succeeded
only on the question of good
faith, the issues on that matter are intertwined
with the availability of the pleaded defences and, thus, there should be a new
trial
of the action. The costs of the first trial should abide the outcome of
the second.
1 [1906] HCA 24; (1906) 3 CLR 1134 at 1147.
2 (1834) 1 CM and R 181 at 193 [1834] EngR 363; (149 ER 1044 at 1050) and see Stephens v West
Australian Newspapers Ltd [1994] HCA 45; (1994) 182
CLR 211 at 238-243.
3 (1872) LR 7 CP 606 at 622.
4 (1917) AC 309 at 349.
5 Justin v Associated Newspapers Ltd (1966) 86 WN (Pt 1) (NSW) 17 at 32 and
Bridges v Australian Consolidated Press Ltd (1967) 86
WN (Pt 2) (NSW) 392 at
399; followed in Thompson v Australian Consolidated Press (1968) 3 NSWR 642 at
645.
6 (1966) 86 WN (Pt 1) (NSW) 17 at 32.
7 [1966] HCA 37; (1966) 117 CLR 185 at 209.
8 (1872) LR 7 CP 606 at 628; approved Sutherland v Stopes (1925) AC 47 at
63.
9 (1872) LR 4 PC 495 at 508.
10 [1975] HCA 47; (1975) 135 CLR 321 at 332.
11 (1869) LR 4 Ex 232.
12 [1966] HCA 37; (1966) 117 CLR 185 at 212-213.
13 His Honour was, in this context, referring to a different category of
qualified privilege - that prescribed by the New South
Wales equivalent of s
377(5) of the Code - but the point is equally valid in reference to s 377(8).
14 [1934] HCA 15; (1934) 50 CLR 632 at 657.
15 (1969) 2 QB 375 at 391.
16 (1863) 4 F and F 13 [1863] EngR 18; (176 ER 445).
17 (1863) 4 F and F 13 at 20 [1863] EngR 18; (176 ER 445 at 448).
18 (1863) 4 F and F 13 at 22 [1863] EngR 18; (176 ER 445 at 449).
19 (1865) 4 F and F 202 [1865] EngR 89; (176 ER 531).
20 (1865) 4 F and F 202 at 223-224 [1865] EngR 89; (176 ER 531 at 540).
21 (1858) 1 F and F 347 [1860] EngR 56; (175 ER 758).
22 (1858) 1 F and F 347 at 350 [1860] EngR 56; (175 ER 758 at 759).
23 (1877) 2 CPD 215.
24 (1877) 2 CPD 215 at 218.
25 (1877) 2 CPD 215 at 221.
26 (1894) 1 QB 133.
27 (1894) 1 QB 133 at 143.
28 (1908) 2 KB 325n.
29 (1908) 2 KB 325n at 326-327.
30 Knuppfer v London Express Newspaper Ltd [1944] UKHL 1; (1944) AC 116; Halsbury, The Laws
of England, 3rd ed, vol 24 at 71.
31 (1894) 1 QB 133 at 140.
32 Gatley on Libel and Slander, 8th ed (1981) pars 731-737; Spencer Bower on
Actionable Defamation, 2nd ed (1923), Art 31, 95-100;
Odgers on Libel and
Slander, 6th ed (1929) at 169ff.
33 Cases including Parmiter v Coupland (1840) 6 M and W 105 [1840] EngR 168; (151 ER 340) and
Turnbull v Bird (1861) 2 F and F 508 [1861] EngR 132; (175 ER 1163)
which speak of the conduct
of public men as subjects of public interest are misleading, as Spencer Bower
demonstrates:
App XII, s
2 at 354-356. It is public conduct that may be a
subject of public interest.
34 Smiths's Newspapers Ltd v Becker [1932] HCA 39; (1932) 47 CLR 279 at 304.
35 [1966] HCA 37; (1966) 117 CLR 185 at 212-213.
36 [1966] HCA 37; (1966) 117 CLR 185 at 208-209.
37 Telegraph Newspaper Co Ltd v Bedford [1934] HCA 15; (1934) 50 CLR 632 at 647.
38 Telegraph Newspaper Co Ltd v Bedford [1934] HCA 15; (1934) 50 CLR 632 at 654-657;
Stephens v West Australian Newspapers Ltd
[1994] HCA 45; (1994) 182 CLR 211
at 250.
39 (1891) 1 QB 524 at 529.
40 Australian Consolidated Press Ltd v Uren [1966] HCA 37; (1966) 117 CLR 185 at 208.
41 [1938] HCA 28; (1938) 59 CLR 503.
42 (1932) 2 KB 431 at 457.
43 [1938] HCA 28; (1938) 59 CLR 503 at 521.
44 [1966] HCA 37; (1966) 117 CLR 185 at 209.
45 [1938] HCA 28; (1938) 59 CLR 503 at 513.
46 (1932) 48 TLR 309 at 316.
47 [1938] HCA 28; (1938) 59 CLR 503 at 521.
48 (1966) 86 WN (Pt 1) (NSW) 17 at 40-41.
49 The phrase used by Cantley J in London Artists Ltd v Littler (1968) 1 WLR
607 at 615 to describe a publication of defamatory
matter that is of public
interest and is published in discharge of a legal, social or moral duty.
50 [1947] HCA 13; (1947) 74 CLR 102 at 117.
51 [1975] HCA 47; (1975) 135 CLR 321.
52 [1975] HCA 47; (1975) 135 CLR 321 at 330.
53 [1975] HCA 47; (1975) 135 CLR 321 at 331.
54 (1917) AC 309 at 318.
55 (1917) AC 309 at 326-327.
56 Spill v Maule (1869) LR 4 Ex 232; Laughton v Bishop of Sodor and Man
(1872) LR 4 PC 495.
57 (1917) AC 309 at 327.
58 (1966) 86 WN (Pt 1) (NSW) 17 at 36-37.
59 [1934] HCA 15; (1934) 50 CLR 632 at 647.
60 (1960) NZLR 69 at 83 (affirmed (1960) 1 WLR 997).
61 [1966] HCA 37; (1966) 117 CLR 185 at 209.
62 Australian Consolidated Press Ltd v Uren [1966] HCA 37; (1966) 117 CLR 185 at 213: no
distinction in respect of the test of
"purpose" can be
drawn between s 377(5)
and s 377(8) in this
respect.
63 [1947] HCA 13; (1947) 74 CLR 102 at 117.
64 (1859) 1 F and F 419 at 426 [1859] EngR 26; (175 ER 790 at 793).
65 Telegraph Newspaper Co Ltd v Bedford [1934] HCA 15; (1934) 50 CLR 632 at 647; Australian
Consolidated Press Ltd v Uren [1966]
HCA 37; (1966) 117 CLR 185 at
208.
66 Australian Consolidated Press Ltd v Uren [1966] HCA 37; (1966) 117 CLR 185 at 211.
67 (1872) LR 4 PC 495 at 508.
68 As the expression of the concept by Lord Denning MR in London Artists Ltd
v Littler (1969) 2 QB 375 at 391 indicates.
69 [1906] HCA 24; (1906) 3 CLR 1134 at 1147.
70 See Stephens v West Australian Newspapers Ltd [1994] HCA 45; (1994) 182 CLR 211 at
246-253.
71 (1877) 2 CPD 215.
72 Telegraph Newspaper Co Ltd v Bedford [1934] HCA 15; (1934) 50 CLR 632 at 646; Australian
Consolidated Press Ltd v Uren [1966]
HCA 37; (1966) 117 CLR 185 at
208; Calwell v Ipec
Australia Ltd [1975] HCA 47; (1975) 135 CLR 321 at 329; and see Justin v Associated
Newspapers (1966) 86 WN (Pt 1) (NSW) 17
at 20, 32, 40.
73 Bedford (1934) 50 CLR 632 at 647; Uren (1966) 117 CLR 185 at 208; Calwell
(1975)
135 CLR 321 at 329.
74 Justin (1966) 86 WN (Pt 1) (NSW) 17 at 32.
75 [1993] HCA 64; (1993) 178 CLR 309 at 317.
76 Bedford (1934) 50 CLR 632 at 663.
77 Bedford (1934) 50 CLR 632 at 647; Uren (1966) 117 CLR 185 at 208; Calwell
(1975)
135 CLR 321 at 329.
78 Odgers, A Digest of the Law of Libel and Slander, 1st ed (1881) at 36.
79 [1966] HCA 37; (1966) 117 CLR 185 at 213.
80 See, for example, Uren [1966] HCA 37; (1966) 117 CLR 185 at 213.
81 The words "and, if so far as the defamatory matter consists of comment,
the comment was fair" were not in s 17(8). They were
added in 1899 as "a few
verbal alterations": see Uren [1966] HCA 37; (1966) 117 CLR 185 at 206.
82 See, for example, Parmiter v Coupland (1840) 6 M and W 105 at 108 (151 ER
340 at 342) per Parke B: "Every subject has a right
to comment on those acts
of public men which concern him as a subject of the realm, if he do not make
his commentary a cloak for
malice and slander".
83 For example, Carr v Hood (1808) 1 Camp 355n at 358 (170 ER 983 at 985) per
Lord Ellenborough: "Every man who publishes a book
commits himself to the
judgment of the public, and anyone may comment upon his performance"; and
Stuart v Lovell [1817] EngR 491; (1817) 2 Stark 93
at 96 [1817] EngR 491; (171 ER 583 at 584) where the reporter
states that Lord Ellenborough CJ "informed the jury" that "(i)t was certainly
competent
to
one public writer to criticise another, exerting his talents in
all the latitude of free communication belonging to a public writer
... That
the opinions and principles of a controversial writer were open to criticism
and ridicule in the same way as those of any
other author".
84 (1861) 2 F and F 508 at 523-524 [1861] EngR 132; (175 ER 1163 at 1170). Other parts of his
Lordship's summing up indicate that even at this late
date, he saw fair
comment as a
branch of the law of qualified privilege.
In the preceding year in Wilson v Reed (1860) 2 F and F 149 at 151 (175 ER
1000 at 1001), Hill J directed the jury:
"But the mere publishing in the columns of a newspaper something as to the
character of another is a self-imposed duty, and does
not constitute a lawful
excuse in law within the meaning of the rule to which I have referred. There
is, however, another rule,
that it is lawful to discuss in the columns of a
public journal matters of public interest, provided it be done bona fide,
without
actual malice, or the unnecessary making of personal imputations on
any individual."
His Lordship's summing up also indicates that he saw the law of fair comment
on matters of public interest as still part of the
law of qualified
privilege.
85 (1862) 7 H and N 891 at 898 [1862] EngR 439; (158 ER 730 at 733).
86 This form of pleading was approved in Penrhyn v The "Licensed Victuallers'
Mirror" (1890) 7 TLR 1. See also the precedent in
Gatley on Libel and
Slander, 8th ed (1981) at 677:
"The said words were fair comment upon a matter of public interest namely
the conduct of the plaintiff in the discharge of his
duties as member of
Parliament as alleged in the testimony of FW given on at the Central Criminal
Court ... in the case of R v XYZ,
a fair and accurate contemporaneous report
of which testimony was published on page 5 of the said issue of the said
newspaper."
87 (1865) 4 F and F 202 [1865] EngR 89; (176 ER 531).
88 (1865) 4 F and F 202 at 223-224 [1865] EngR 89; (176 ER 531 at 540).
89 Woodgate v Ridout (1865) 4 F and F 202 [1865] EngR 89; (176 ER 531).
90 Hibbins v Lee (1864) 4 F and F 243 [1864] EngR 16; (176 ER 549).
91 Hedley v Barlow (1865) 4 F and F 224 [1865] EngR 23; (176 ER 541).
92 Speight v Syme (1894) 16 ALT 71 at 73: "Fair comment may be shortly
expressed thus. It is criticism and comments on, or conclusions
drawn from,
the public acts of a public man by you or by me, or by any individual in the
community, or by the press." (In that case,
the subject of public interest
was the administration of the Victorian Railway Commissioner).
93 Broadbent v Small [1876] VicLawRp 77; (1876) 2 VLR(L) 121 at 124: "The public acts or conduct
of a person in a public office, are the legitimate
subjects of criticism;
but,
apart from those acts or conduct, a public officer is no more obnoxious to
criticism than a private individual";
Williams v
Spowers [1882] VicLawRp 67; (1882) 8 VLR(L) 82 at
101-102: "the public sayings and doings of a public man are public property,
upon which
every member of the
community is entitled to offer fair comments".
94 (1866) LR 1 QB 686 at 689.
95 Parmiter v Coupland (1840) 6 M and W 105 at 108 [1840] EngR 168; (151 ER 340 at 342).
96 Dibdin v Swan and Bostock (1793) 1 Esp 28 (170 ER 269) (running a place of
public entertainment); Carr v Hood (1808) 1 Camp 355
(170 ER 983) (writing
books); cf Gardiner v John Fairfax and Sons Pty Ltd (1942) 42 SR(NSW) 171
(writing a novel); Stuart v Lovell
[1817] EngR 491; (1817) 2 Stark 93 (171 ER 583) (publishing
a newspaper); Dunne v Anderson [1825] EngR 569; (1825) 3 Bing 88 (130 ER 447) (petitioning
Parliament);
Soane v Knight (1827) M and M 74 (173 ER 1086) (architectural
works); Thompson
v Shackell (1828) M and M 187 (173 ER 1126) (painting
a
portrait); Macleod v Wakley (1828) 3 Car and P 311 [1828] EngR 423; (172 ER 435) (editing a
medical journal); Green v Chapman [1837] EngR 1049; (1837) 4 Bing (NC)
92 (132 ER 724)
(exhibiting at a flower show); Gathercole v Miall (1846) 15 M and W 319 (153
ER 872) (preaching
a sermon).
97 Halsbury, The Laws of England, 1st ed (1911), vol 18, Libel and Slander at
700-701:
"The need of the defence of fair comment on a matter of public interest does
not arise if the statement complained of does not reflect
on the plaintiff".
98 In Eastwood v Holmes (1858) 1 F and F 347 [1860] EngR 56; (175 ER 758), the plaintiff
carried on business as an antique dealer and sued on an
article that described
certain leaden figures
"reported to have been found in the Thames" and sold as
antiquities as an attempt at
extortion and deception. Willes J held (at
349-350 [1860] EngR 56; (175 ER 758 at 759)) that the plaintiff was not sufficiently
identified, but
that, if he had been, the publication was "protected
by the
privilege of fair discussion on a matter of public interest, it not appearing
that it was malicious." Thus, if the plaintiff
had been identified, the
subject of public interest would have been the conduct of
the plaintiff in
selling fraudulent antiques to
the public.
99 Odgers, A Digest of the Law of Libel and Slander, 1st ed (1881) at 36-37.
100 None of the post-1889 cases has departed from this basic understanding of
a subject of public interest. In South Hetton Coal
Company v North Eastern
News Association (1894) 1 QB 133, for example, the Court of Appeal held that
the conduct of a colliery company
was a subject of public interest because the
company was the owner or tenant of the bulk of houses in a colliery village
which were
occupied by colliers employed by the company and were alleged to be
in a highly unsanitary state. Plainly, the conduct of the plaintiff
invited
public criticism because, as Lord Esher MR pointed out (at 140), "it related
to so large a number of people, of such a kind,
to a district of such an
extent, and to matters of such importance as to render it a matter of public
interest that the conduct of
the employers should be criticised" (our
emphasis). South Hetton Coal Company was applied by the Court of Appeal in
London Artists
Ltd v Littler (1969) 2 QB 375 where the Court held that the
alleged conduct of the plaintiffs in conspiring to stop a successful
stage
play was a subject of public interest. Lord Denning MR said (at 391):
"Whenever a matter is such as to affect people at large,
so that they may be
legitimately interested in, or concerned at, what is going on; or what may
happen to them or to others; then
it is a matter of public interest on which
everyone is entitled to make fair comment." Lord Denning said that South
Hetton Coal Company
was a good example of a subject of public interest and
cited Lord Esher's statement in that case that it was "a matter of public
interest that the conduct of the employers should be criticised". Lord
Denning said (at 391): "When three top stars and a satellite
all give notice
to leave at the same time - thus putting a successful play in peril - it is to
my mind a matter of public interest
in which everyone, Press and all, are
entitled to comment freely."
101 (1891) AC 107 at 144-145.
102 (1891) AC 107 at 145.
103 Thus in the first edition of his work on The Law of Torts, (1887), Sir
Frederick Pollock, after saying (at 219) that "(n)othing
is a libel which is
fair comment on a subject fairly open to public discussion", said (at
221-222):
"What acts and conduct are open to public comment is a question for the
Court, but one of judicial common sense rather than of
technical definition.
Subject-matter of this kind may be broadly classed under two types.
The matter may be in itself of interest to the common weal, as the conduct
of persons in public offices or affairs, of those in
authority, whether
imperial or local, in the administration of the law, of the managers of public
institutions in the affairs of
those institutions, and the like.
Or it may be laid open to the public by the voluntary act of the person
concerned. The writer of a book offered for sale, the
composer of music
publicly performed, the author of a work of art publicly exhibited, the
manager of a public entertainment, and
all who appear as performers therein,
the propounder of an invention or discovery publicly described with his
consent, are all deemed
to submit their work to public opinion, and must take
the risks of fair criticism; which criticism, being itself a public act, is
in
like manner open to reply within commensurate limits."
This passage, although doubting that "subject of public interest" had a
technical definition, makes it clear that it is the "acts
and conduct" of
particular persons that constitute the subjects of public interest.
104 Gamer's Motor Centre (Newcastle) Pty Ltd v Natwest Wholesale Australia
Pty Ltd [1987] HCA 30; (1987) 163 CLR 236 at 244-245;
Vagliano (1891)
AC 107 at 145.
105 including police officers.
106 Because s 377(8) provides a defence of qualified protection, it is not
necessary for the defendant to prove that the conduct
discussed is true. It
is sufficient that the conduct is believed to be true, and the onus is on the
plaintiff to prove that the
defendant did not believe the "facts" discussed to
be true: Rigby v Associated Newspapers Limited (1966) 68 SR(NSW) 414; Pervan
[1993] HCA 64; (1993) 178 CLR 309.
107 Queensland, Legislative Assembly, Parliamentary Debates, (Hansard) 19
July 1889 at 737.
108 At common law, it would be meaningless to speak of a fair comment on
"organised crime and corruption in Queensland" or a fair
comment on "the
existence of illegal activities" or a fair comment on "trafficking in illegal
drugs" without the comment referring,
expressly or impliedly, to the conduct
of individuals whose office or public activities invited public criticism and
discussion.
Thus, a comment on the conduct of a private individual who had
secretly engaged in organised crime could not be justified at common
law as a
fair comment on a subject of public interest, no matter for how long or how
heavily he or she had been engaged in organised
crime. It is the failure to
grasp this point that has led to the view that "some subject of public
interest" in s 377(8) includes
general abstractions unrelated to the conduct
of particular individuals.
109 [1966] HCA 37; (1966) 117 CLR 185 at 209.
110 Kane v Mulvany (1866) IR 2 CL 402.
111 (1966) 86 WN (Pt 1) (NSW) 17 at 40.
112 [1993] HCA 64; (1993) 178 CLR 309.
113 In this case, the defendant tendered sixty-seven newspaper articles
published over a number of years to prove the existence
of a public discussion
of such subjects as corruption. See also the reference to the "'conglomerate'
exhibit" of extracts of newspaper
items in Rigby v Associated Newspapers Ltd
(1966) 68 SR (NSW) 414 at 424.
114 For example, the defamatory matter concerning the plaintiff may be the
sole subject of a publication but that publication may
refer expressly or
inferentially to an existing discussion of the subject of public interest in a
way that establishes that the defamatory
matter was published in the course of
or for the purposes of that discussion.
115 Uren (1966) 117 CLR 185 at 213; Justin (1966) 86 WN (Pt 1) (NSW) 17 at
40.
116 Justin (1966) 86 WN (Pt 1) (NSW) 17 at 40.
117 Justin (1966) 86 WN (Pt 1) (NSW) 17 at 46, 51.
118 Uren (1966) 117 CLR 185 at 213.
119 [1966] HCA 37; (1966) 117 CLR 185 at 213.
120 It is well established that, in workers' compensation statutes, the
phrase "injury arising ... in the course of employment"
requires only a
temporal connection between the injury and the employment. An injury
occurring while engaged in employment occurs
"in the course of" employment
whether or not there is any nexus or causal connection with the employment:
Kavanagh v The Commonwealth
[1960] HCA 25; (1960) 103 CLR 547; The Commonwealth v Oliver
[1962] HCA 38; (1962) 107 CLR 353; Weston v Great Boulder Gold Mines
Ltd [1964] HCA 59; (1964) 112 CLR 30.
Cases
such as Bill Williams Pty Ltd v Williams [1972] HCA 23; (1972) 126 CLR 146, where the
claim of the worker failed, were decided on the basis that
the employment had
been interrupted.
121 See Justin (1966) 86 WN (Pt 1) (NSW) 17 at 41.
122 [1934] HCA 15; (1934) 50 CLR 632 at 647.
123 (1966) 86 WN (Pt I) (NSW) 17 at 36-38.
124 The Court of Appeal followed Justin in Mackie v Australian Consolidated
Press Ltd (1974) 1 NSWLR 561 at 565, 573 and 582.
125 Justin (1966) 86 WN (Pt 1) (NSW) 17 at 38, 40, 41.
126 (1917) AC 309 at 318.
127 (1966) 86 WN (Pt 1) (NSW) 17 at 34.
128 Vagliano (1891) AC 107 at 145.
129 cf Sutherland v Stopes (1925) AC 47 at 55, 67-68, 70.
130 s 366; Pervan (1993) 178 CLR 309 at 333.
131 His Honour cited Queensland Newspapers Pty Ltd and Hardy v Baker (1937)
St R Qd 153 at 168; Rigby v Associated Newspapers Ltd
(1966) 68 SR(NSW) 414 at
426; Clines v Australian Consolidated Press Ltd (1966) 84 WN (Pt 2) (NSW) 86
at 97; Bridges v Australian
Consolidated Press Ltd (1967) 70 SR(NSW) 52; Rigby
v Associated Newspapers Ltd (1969) 1 NSWR 729 at 731; Plumb v Australian
Consolidated
Press Ltd (1975) 2 NSWLR 414 at 430; Pervan v The North
Queensland Newspaper Co Ltd (1991) ATR 81-119 at 69,125-69,126.
132 In that case, there would have been no evidence that the manner or extent
of the publication exceeded what was "reasonably sufficient
for the
occasion".
133 A defence of a fair report of the proceedings of the Legislative Assembly
of Queensland was also pleaded by way of Amended Defence.
This defence was
not left to the jury and is not involved in this appeal.
134 This relocation was effected by s 459(1) and (2) and Sched 3, Pt 1 of the
Criminal Code 1995 (Q) which came into operation on
16 June 1995.
135 The substance of s 377 of the Code is now enacted as s 16 of the
Defamation Act (see note 134).
136 The substance of s 366 of the Code is now enacted as s 4 of the
Defamation Act (see note 134).
137 [1993] HCA 64; (1993) 178 CLR 309 at 333.
138 The substance of ss 378 and 379 of the Code is now enacted as ss 17 and
19 of the Defamation Act (see note 134).
139 See, for example, Telegraph Newspaper Co Ltd v Bedford [1934] HCA 15; (1934) 50 CLR 632
at 647; Musgrave v The Commonwealth
[1936] HCA 80; (1937) 57 CLR 514
at 552. See also Calwell
v Ipec Australia Ltd [1975] HCA 47; (1975) 135 CLR 321 at 330, concerning
a provision in very
similar terms to s 377.
140 Australian Consolidated Press Ltd v Uren [1966] HCA 37; (1966) 117 CLR 185 at 208;
Telegraph Newspaper Co Ltd v Bedford [1934]
HCA 15; (1934) 50 CLR 632 at
658.
141 Pervan v North Queensland Newspaper Co Ltd [1993] HCA 64; (1993) 178 CLR 309 at
317-318.
142 Section 379 of the Code.
143 (1969) 2 QB 375 at 391.
144 See Sungravure Pty Ltd v Middle East Airlines [1975] HCA 6; (1975) 134 CLR 1 (a case
concerning the Defamation Act 1958 (NSW))
at 22 per Mason
J, referring to Bank
of England v Vagliano Brothers
(1891) AC 107 at 144-145 per Lord Herschell.
145 London Artists Ltd v Littler (1969) 2 QB 375 at 391 per Lord Denning MR,
speaking of a "matter of public interest" in relation
to the common law
defence of fair comment.
146 [1966] HCA 37; (1966) 117 CLR 185 at 207 speaking of s 17(h) of the Defamation Act 1958
(NSW) (now repealed) which was in the
same form as
s 377(8)
of the Code. See
also Pervan v North Queensland Newspaper Co Ltd [1993] HCA 64; (1993) 178 CLR 309 at 319.
147 The substance of s 375 of the Code is now enacted as s 14 of the
Defamation Act (see note 134).
148 See, for example, Hibbins v Lee (1864) 4 F and F 243 [1864] EngR 16; (176 ER 549); Hedley
v Barlow (1865) 4 F and F 224 [1865] EngR 23; (176 ER 541).
149 See, for example, Carr v Hood (1808) 1 Camp 355n (170 ER 983); Dunne v
Anderson [1825] EngR 569; (1825) 3 Bing 88 (130 ER 447); Campbell v Spottiswoode
(1863) 3 F and
F 421 (176 ER 188).
150 (1894) 1 QB 133.
151 (1894) 1 QB 133 at 140. The other two members of the Court of Appeal
(Lopes and Kay LJJ) also took a broad general approach
to the question whether
the subject of the article was a matter of public interest. Lopes LJ said (at
143): "The attack upon the
plaintiffs is in respect of the sanitary condition
of their property, involving the health, comfort, and well-being of over two
thousand
human beings. The sanitary condition of this large population is
placed under the control of a public body who do not interpose.
Can it be
said that this alleged state of things is not a matter of grave public
interest?" Kay LJ said (at 144-145): "Considering
the extent of colliery
business in this country, the enormous number of men employed in it, the
legislative provisions that have
of necessity been made concerning the mode of
carrying it on, as for instance in the ventilation of coal mines, considering
the number
of people in this particular village, the fact that the houses in
which they live are supplied by the colliery proprietors rent free
as part of
the colliers' wages, that this very village is within the jurisdiction of a
rural sanitary authority, and that the article
complained of seems from the
commencement of it to be one of a series dealing with the homes of pitmen in
the county of Durham, I
am of opinion that the subject of the article is a
matter of public interest".
152 Australian Consolidated Press Ltd v Uren [1966] HCA 37; (1966) 117 CLR 185 at 209 per
Windeyer J, approving the trial judge's
ruling to this
effect.
153 [1966] HCA 37; (1966) 117 CLR 185 at 209.
154 [1938] HCA 28; (1938) 59 CLR 503.
155 (1915) 31 TLR 299 at 304 per Buckley LJ.
156 [1938] HCA 28; (1938) 59 CLR 503 at 521. The other was a statement to similar effect by
Latham CJ in the same case at 513.
See also Truth
(NZ)
Ltd v Holloway (1960)
NZLR 69 at 84; Justin v Associated Newspapers Ltd (1966) 86 WN (Pt 1) (NSW) 17
at 40 per
Walsh JA.
157 See, for example, Crate v McCallum (1905) 11 OLR 81; Adam v Ward (1917)
AC 309; Kinney v Fisher (1921) 62 SCR 546. See also
the cases cited in note
149.
158 See Hibbs v Wilkinson [1859] EngR 76; (1859) 1 FandF 608 (175 ER 873).
159 [1994] HCA 46; (1994) 182 CLR 104 at 140 per Mason CJ, Toohey and Gaudron JJ.
160 Australian Consolidated Press Ltd v Uren [1966] HCA 37; (1966) 117 CLR 185 at 209 per
Windeyer J, speaking of s 17(h) of the
Defamation Act
1958 (NSW) (now
repealed) which was in the same
form as s 377(8) of the Code.
161 See Justin v Associated Newspapers Ltd (1966) 86 WN (Pt 1) (NSW) 17 at
51-52 per Jacobs JA; Mackie v Australian Consolidated
Press Ltd (1974) 1 NSWLR
561 at 573-574 per Hutley JA; Calwell v Ipec Australia Ltd [1975] HCA 47; (1975) 135 CLR 321
at 330 per
Mason J.
162 (1917) AC 309 at 320-321; see also at 318 per Lord Finlay LC, 327 per
Lord Dunedin, 348 per Lord Shaw of Dunfermline.
163 (1917) AC 309 at 321.
164 See Horrocks v Lowe (1975) AC 135 at 150. See also Royal Aquarium and
Summer and Winter Garden Society v Parkinson (1892) 1
QB 431 at 444 per Lord
Esher MR, 454 per Lopes LJ.