A trial judge's determination of whether defamatory imputations were published within an occasion of common law qualified privilege is an evaluative conclusion reviewable on appeal by way of rehearing, not a discretionary ruling subject to House v The King. The combination of falsity, irrationality and extreme language in defamatory imputations may render them extraneous to the occasion of privilege, even where the jury has found absence of malice. For statutory qualified privilege under s 22 of the Defamation Act 1974 (NSW), the deliberate publication of serious defamatory imputations without evidence of honest belief in their truth or steps taken to verify them will almost inevitably render the publisher's conduct unreasonable.
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