Holmes a Court v Papaconstuntinos

[2011] NSWCA 59

NSW Court of Appeal

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Interrogate

Catchwords

1. Defamation
2. › Defences
3. › Qualified privilege
4. › Common law
5. › Reciprocity of interest
6. › Community of interest
7. › Whether publisher and recipient had sufficient community of interest to establish occasion of qualified privilege
1. Defamation
2. › Defences
3. › Qualified privilege
4. › Common law
5. › Voluntary communications
6. › Whether voluntariness of publication is decisive against finding of qualified privilege
7. › Whether 'pressing need' is a precondition for privilege where publication is voluntary
8. › Relevance of timing of publication
1. Defamation
2. › Defences
3. › Qualified privilege
4. › Common law
5. › Scope of privileged occasion
6. › Whether defamatory matter sufficiently connected to privileged occasion
7. › Whether corruption allegations germane and reasonably appropriate to occasion
1. Appeal
2. › Precedent
3. › Dissenting judgments
4. › Whether dissenting judgment in High Court may be applied as exposition of common law
5. › Whether previous Court of Appeal decisions applied dissenting judgment and should be overruled

Quick Take

Voluntariness of a defamatory publication is a relevant but not decisive factor in determining qualified privilege at common law. There is no superadded requirement of 'pressing need' where the publisher has an established interest, even if the publication is voluntary. The propositions of McHugh J in Bashford v Information Australia (2004) 218 CLR 366 at [73] and [77] regarding pressing need and the decisiveness of voluntariness do not represent the law of Australia. The question of qualified privilege turns on a close examination of all the circumstances of the publication.