Bashford v Information Australia (Newsletters) Pty Ltd

HIGH COURT OF AUSTRALIA

GLEESON CJ,
McHUGH, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ

REX BASHFORD  APPELLANT

AND

INFORMATION AUSTRALIA (NEWSLETTERS)
PTY LIMITED   RESPONDENT

Bashford v Information Australia (Newsletters) Pty Limited [2004] HCA 5

11 February 2004

S393/2002

ORDER

Appeal dismissed with costs.

On appeal from the Supreme Court of New South Wales

Representation:

R S McColl SC with M A Kumar for the appellant (instructed by Eakin McCaffery Cox)

G O'L Reynolds SC with R G McHugh and A T S Dawson for the respondent (instructed by Corrs Chambers Westgarth)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Bashford v Information Australia (Newsletters) Pty Limited

Defamation – Defences – Common law defence of qualified privilege – Matter published conveying imputation defamatory of appellant in subscription publication – Where matter involved report of judicial proceedings – Where no claim for qualified privilege made under Defamation Act 1974 (NSW) – Whether qualified privilege available as a defence – Whether matter published on occasion of qualified privilege – Publication for reward – Publication of matter concerning occupational health and safety – Publication to subscribers – Subscribers professionally concerned with matters of occupational health and safety – Whether reciprocity of duty or interest – Whether defamatory matter sufficiently connected to the privileged occasion – Whether absence of availability of defence of fair and accurate report of judicial proceedings precludes availability of defence of qualified privilege.

Defamation Act 1912 (NSW), s 29(1)(d), (e).
Defamation Act 1958 (NSW).
Defamation Act 1974 (NSW), ss 11, 22, 24.

1. GLEESON CJ, HAYNE AND HEYDON JJ.   Central to the resolution of the issues in this appeal is the proper application of principles regulating the availability of the common law defence of qualified privilege to a claim for defamation.

2. The appellant sued the respondent in the Supreme Court of New South Wales for defamation.  He alleged that the respondent had defamed him in a periodical it published called "Occupational Health and Safety Bulletin".  The relevant text of the matter which the respondent published, and which the appellant alleged defamed him, is set out in the reasons of other members of the Court.  Those reasons also describe the course of proceedings in the courts below.  We need only repeat those matters which are necessary to explain our reasons.

3. A jury found, and it is now not disputed, that the matter which the respondent published conveyed the following imputation, which was defamatory of the appellant:  that the appellant had been found by the Federal Court of Australia liable to ACOHS Pty Ltd ("ACOHS") in damages and costs for causing that company harm and loss by publishing a false report concerning it.

4. In fact, a company controlled by the appellant and his wife (R A Bashford Consulting Pty Ltd – "Consulting") had been found by the Federal Court to be liable to ACOHS.  The appellant had not been a party to those proceedings and it follows that it was wrong to say that he, as distinct from his company, had been found liable.

5. It is necessary to say something about the claim which ACOHS made against Consulting in the Federal Court. It concerned, among other things, the publication of a newsletter called "Infax". On 2 December 1993, Consulting and another company called Risk Management Concepts Pty Ltd published an item entitled "Chemwatch wins copyright case". The Federal Court found (and in its final orders declared) that in publishing this item, or causing it to be published, those companies engaged in conduct which contravened s 52 of the Trade Practices Act 1974 (Cth)[1].  The Court ordered Consulting, Risk Management Concepts Pty Ltd, and a third respondent (Mr Bialkower), to pay ACOHS $20,000 damages and to pay part of ACOHS' costs of the proceeding.  Thus, the Federal Court found Consulting (but not the appellant personally) liable to ACOHS in damages and costs for causing it harm and loss.

   [1]Acohs Pty Ltd v R A Bashford Consulting Pty Ltd (1997) 144 ALR 528 at 558.

6. It is important to identify the basis for that finding against Consulting. The "item" published in the "Infax" newsletter falsely asserted that "Chemwatch" (a competitor of ACOHS) had "successfully challenged in court ... for breach of copyright" two companies which used, on a database, material safety data sheets prepared by Chemwatch. The item said that entering the data sheets into the database was an "unlawful act ... in total disregard of copyright legislation". The item implied that ACOHS was one of the two companies concerned. In fact, however, Chemwatch had not succeeded in proceedings of that kind. Publishing, or causing to be published, the assertion, that entering material safety data sheets into a database had been judicially determined to breach copyright, was held by the Federal Court to be misleading or deceptive conduct contravening s 52 of the Trade Practices Act.  (The Federal Court also reached a number of other conclusions about copyright in material safety data sheets and about licences to use that copyright material.  The validity of those conclusions could not be and was not examined in this litigation.)

   The issues in this Court

7. In this Court the appellant made three, related, contentions.  First, it was submitted that the primary judge and the Court of Appeal erred in finding[2] that the matter of which the appellant complained was published on an occasion of qualified privilege.  Secondly, it was submitted that if the matter was published on an occasion of qualified privilege, that part of the matter which defamed the appellant was not sufficiently connected to the occasion to attract the defence.  (The primary judge held[3] that it was; the Court of Appeal divided on the point, holding by majority (Sheller and Hodgson JJA, Rolfe AJA dissenting) that the primary judge was not shown to have erred in this respect[4].)  Thirdly, it was submitted that the matter which defamed the appellant was an inaccurate report of court proceedings and that, because the report was inaccurate, the defence of qualified privilege could not be engaged.

   [2]Bashford v Information Australia (Newsletters) Pty Ltd [2000] NSWSC 665 at [24] per Davies AJ and, on appeal, [2001] NSWCA 470 at [1] per Sheller JA, [32] per Hodgson JA, [54] per Rolfe AJA.

   [3][2000] NSWSC 665 at [24].

   [4][2001] NSWCA 470 at [2]‑[4] per Sheller JA, [32]‑[44] per Hodgson JA; cf [55]‑[57] per Rolfe AJA.

8. Before dealing with these arguments in the order stated it is necessary to refer to Pt 3 of the Defamation Act 1974 (NSW) which deals with defences in civil proceedings for defamation[5].  Division 2 provides[6], among other things, that it is a defence to any imputation complained of that it is published under qualified privilege.  Division 2 identifies[7] both when an imputation is published under qualified privilege and what is an occasion of qualified privilege. The application of the provisions of Div 2 of Pt 3 of the Act was not in issue in the appeals to the Court of Appeal or this Court. On appeal, the respondent did not rely on the statutory defence of qualified privilege. Rather, consonant with s 11 of the Act (that the provision of a defence by Pt 3 "does not of itself vitiate, diminish or abrogate any defence" available apart from the Act), the respondent contended that the primary judge had correctly concluded that the common law defence of qualified privilege was available to it.

   [5]s 10.

   [6]By s 15(2)(b).

   [7]In s 14.

   An occasion of qualified privilege?

9. The principles to be applied in determining whether the occasion of publication of matter about which complaint is made was an occasion of qualified privilege are well known.  The authorities that state those principles are equally well known[8].  Frequent reference is made to the statement of Parke B in Toogood v Spyring[9]:

   "In general, an action lies for the malicious publication of statements which are false in fact, and injurious to the character of another (within the well‑known limits as to verbal slander), and the law considers such publication as malicious, unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned.  In such cases, the occasion prevents the inference of malice, which the law draws from unauthorized communications, and affords a qualified defence depending upon the absence of actual malice.  If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits."

   Reciprocity of duty or interest is essential[10].

   [8]Toogood v Spyring (1834) 1 Cr M & R 181 [149 ER 1044]; Adam v Ward [1917] AC 309.

   [9](1834) 1 Cr M & R 181 at 193 [149 ER 1044 at 1049‑1050].

   [10]Adam v Ward [1917] AC 309 at 334.

10. These principles are stated at a very high level of abstraction and generality.  "The difficulty lies in applying the law to the circumstances of the particular case under consideration"[11].  Concepts which are expressed as "public or private duty, whether legal or moral"[12] and "the common convenience and welfare of society"[13] are evidently difficult of application.  When it is recognised, as it must be, that "the circumstances that constitute a privileged occasion can themselves never be catalogued and rendered exact"[14], it is clear that in order to apply the principles, a court must "make a close scrutiny of the circumstances of the case, of the situation of the parties, of the relations of all concerned and of the events leading up to and surrounding the publication"[15].

    [11]Macintosh v Dun (1908) 6 CLR 303 at 305 per Lord Macnaghten; [1908] AC 390 at 398.

    [12]Toogood v Spyring (1834) 1 Cr M & R 181 at 193 per Parke B [149 ER 1044 at 1050].

    [13]Toogood v Spyring (1834) 1 Cr M & R 181 at 193 per Parke B [149 ER 1044 at 1050].

    [14]London Association for Protection of Trade v Greenlands Ltd [1916] 2 AC 15 at 22 per Lord Buckmaster LC.

    [15]Guise v Kouvelis (1947) 74 CLR 102 at 116 per Dixon J.

11. The primary judge's reasons did not identify the particular circumstances of the case which made the occasion of publication one of qualified privilege.  His Honour did cite the well‑known statements of Lord Atkinson in Adam v Ward[16] and noted[17] that the subjects and issues dealt with in the matter which the respondent had published were of interest to persons operating in the field of occupational health and safety.  It may be that argument at trial was understood as focused more upon other issues, such as malice, than it was upon whether the occasion was one of qualified privilege.

    [16][1917] AC 309 at 334.

    [17][2000] NSWSC 665 at [22].

12. In the Court of Appeal, however, a deal of attention was directed to identifying the circumstances which made the occasion of publication a privileged occasion.  Five features of the circumstances of publication were noted by Hodgson JA who, in this respect, stated the reasons of the Court.  First, occupational health and safety was identified as a matter of importance for the common convenience and welfare of society[18].  Secondly, the communication of matters relevant to that issue to persons responsible for occupational health and safety was said to promote that common convenience and welfare[19].  Thirdly, it was noted that the respondent's publication was a subscription periodical distributed to persons responsible for occupational health and safety, and not to a wider audience[20].  Fourthly, it was said that having accepted subscriptions, the respondent was morally and legally obliged to publish for its subscribers matters of significance on the topic[21]. Finally, it was said that the Federal Court's decision on the claim made by ACOHS for damages for contravention of s 52 was a matter of significance on the topic of occupational health and safety[22].

    [18][2001] NSWCA 470 at [32].

    [19][2001] NSWCA 470 at [32].

    [20][2001] NSWCA 470 at [33].

    [21][2001] NSWCA 470 at [32].

    [22][2001] NSWCA 470 at [32].

13. The appellant submitted both in this Court and in the Court of Appeal that there was not the necessary reciprocity of duty or interest to make the occasion of publication privileged.  It was emphasised that the respondent was a publisher for profit.  The appellant submitted that any duty or interest which the respondent had was created by itself; the respondent and its subscribers had no interest in common, so it was said, save that provided by the subscription contracts they had made.

    The significance of a profit motive

14. Reference must be made, and was made in argument in this Court, to the advice of the Privy Council in Macintosh v Dun[23] and the decision of this Court in Howe & McColough v Lees[24].  But attention cannot be, and was not, confined to those two decisions.  Both must be set in the general fabric of the law relating to qualified privilege.

    [23](1908) 6 CLR 303; [1908] AC 390.

    [24](1910) 11 CLR 361.

15. Each concerned mercantile references.  Macintosh concerned a reference given by a trade protection society, or mercantile agency, to one of its subscribers about the commercial "standing, responsibility, [et cetera]" of a trader for the purpose "of aiding [the subscriber] to determine the propriety of giving credit" to the trader[25].  It was ultimately held that the reference was not made on an occasion of qualified privilege.  In giving the advice of the Privy Council, Lord Macnaghten emphasised that the information upon which a mercantile agency would base its reference about a trader's standing would include confidential information.  His Lordship referred[26] to the possibility that such information would be extorted from the trader, or would come from gossip, discharged servants or disloyal employees.  Accordingly, although it would be convenient for a subscriber, who was also a trader, to know what Lord Macnaghten described[27] as "all the secrets of his neighbour's position, his 'standing', his 'responsibility', and whatever else may be comprehended under the expression 'et cetera'", the good of society did not require that disclosure of such information for profit be privileged.

    [25](1908) 6 CLR 303 at 304; [1908] AC 390 at 398.

    [26](1908) 6 CLR 303 at 307; [1908] AC 390 at 400.

    [27](1908) 6 CLR 303 at 307; [1908] AC 390 at 401.

16. The fact that the mercantile agency was in the business of providing the information was evidently an important consideration leading to denial of the claim to privilege.  It would be wrong, however, to isolate that element of profit and conclude that it will, in every case and without more, deny the availability of a defence of qualified privilege.  In Macintosh, further elements were identified:  the disclosure of confidential information would be sought, and it would likely be sought by means condemned as at least inappropriate, if not unlawful.  While these further considerations were seen as following from the existence of the profit motive, they were considerations critical to the conclusion that the occasion was not privileged.

17. In Howe & McColough the members of an association of stock salesmen had contracted with each other to supply information about the default of any purchaser of stock.  Failure to fulfil that obligation to supply information rendered a member of the association liable to forfeit a sum of money.  There was, therefore, at least that commercial spur to the performance of the obligation as well as the self‑interest in avoiding future defaults.  This Court held that each member of the association had an interest in making and receiving communications of information about default.  It was held, therefore, that the publication occurred on a privileged occasion, there being the necessary reciprocity of duty or interest.  The Court distinguished Macintosh.  O'Connor J said[28] that the Privy Council's decision in Macintosh was to be understood as authority for no more than the proposition that "an individual, or an association or corporation, that makes a business of collecting information about traders' credit and selling it for reward to other traders has no privilege to communicate defamatory matter in the information".  Macintosh does stand for that proposition, but does it, as the appellant contended here, stand for some wider proposition?

    [28](1910) 11 CLR 361 at 373.

18. In both Macintosh and Howe & McColough, the maker and the recipient of the communication which was held to have defamed the plaintiff made or received the communication pursuant to contractual obligations which each had voluntarily assumed.  In both cases, the maker and the recipient of the communication were in business and the communication related to a business transaction.  In both cases, the maker and the recipient had a business reason (that is, a profit motive) for making or receiving the communication.  Yet in Howe & McColough it was held that there was mutual duty or interest, whereas in Macintosh it was held that there was not.

19. The Full Court of New South Wales had held in Macintosh[29] that reciprocity of duty or interest was established.  Pring J, who gave the reasons of the Full Court, said that because there was a contract to supply the information, the mercantile agency was under a legal duty to supply to the subscriber making the inquiry whatever information the agency had.  He rejected the proposition that, because the mercantile agency was paid for its information, there could be no privilege.  He described this argument as amounting to saying "that the higher the duty the less the protection"[30].  On appeal to this Court this analysis was substantially affirmed[31].

    [29]Macintosh v Dun (1905) 5 SR (NSW) 708.

    [30](1905) 5 SR (NSW) 708 at 718.

    [31]Dun v Macintosh; Macintosh v Dun (1906) 3 CLR 1134.

20. It is important to recognise that, in rejecting the analysis made in the Full Court of New South Wales and this Court, the Privy Council did not endorse the proposition urged in the Full Court that payment for information necessarily denies that the occasion of its communication is privileged.  Nor did the Privy Council hold that the voluntary assumption of obligations (whether by contract or otherwise) is necessarily inconsistent with the existence of mutual duty or interest.  What distinguished Macintosh from Howe & McColough was the nature of the information conveyed and the manner of its collection.  In Macintosh, information which included private or confidential material gathered from and about third parties was being conveyed; in Howe & McColough, information about a transaction to which the maker of the statement was a party was passed on.  In Macintosh, the fear was that inappropriate methods would be used to assemble the information; in Howe & McColough, the person who made the communication already possessed the relevant knowledge.

21. In his reasons in the present case Hodgson JA said[32] he accepted "that one cannot create a licence to oneself to defame other persons by undertaking a contractual obligation to supply information".  Divorced from its context, that proposition might be misunderstood.  Macintosh does not establish that proposition and, expressed as it was, it might be understood as misstating the place of qualified privilege in the law of defamation.

    [32][2001] NSWCA 470 at [32].

22. Qualified privilege gives no licence to defame.  It denies the inference of malice that ordinarily follows from showing that false and injurious words have been published.  If the occasion is privileged the further question which arises is whether the defendant "has fairly and properly conducted himself in the exercise of it"[33].  In a trial of all issues in a defamation action by judge and jury, the question whether the occasion is privileged is a question of law for the judge; the question whether the occasion was used for the purpose of the privilege is a question of fact for the jury[34].  That is, it is for the jury in such a trial to decide the issue of malice.  If the judge rules that the occasion is privileged, "the burden of shewing that the defendant did not act in respect of the reason of the  privilege, but for some other and indirect reason, is thrown upon the plaintiff"[35].  But if the occasion is held to have been privileged, the question of malice will ordinarily remain to be answered.  If that is so, it cannot be said that the defendant had some licence to defame.

    [33]Guise v Kouvelis (1947) 74 CLR 102 at 117 per Dixon J quoting Dickson v Earl of Wilton (1859) 1 F & F 419 at 426 per Lord Campbell CJ [175 ER 790 at 793].

    [34]Guise v Kouvelis (1947) 74 CLR 102 at 117 per Dixon J.

    [35]Clark v Molyneux (1877) 3 QBD 237 at 247 per Brett LJ.

23. Was there, in this case, that reciprocity of duty or interest between maker and recipient of the matter of which complaint was made which would make the occasion of its communication privileged?  What legal, social, or moral duties or interests were engaged between the respondent as publisher and those subscribers to whom it published its Bulletin?

24. The respondent described its Bulletin, on the masthead of the publication and in the advertising material it distributed, as a "plain English guide to workplace health and safety".  The subscribers to the Bulletin were persons responsible for health and safety in the workplace, not any wider audience.  By accepting subscriptions, the respondent undertook to publish a periodical of the kind it described – a guide to workplace health and safety.  The subject of the guide was rightly identified in the Court of Appeal as important to society as a whole.  The dissemination of information about that subject to those responsible for it was rightly held by the primary judge and the three judges in the Court of Appeal as advancing the common convenience and welfare of society.  The matter of which complaint was made concerned the use which persons other than the copyright owner might make of material safety data sheets containing safety information about hazardous materials.

25. The facts that the respondent voluntarily embarked on its publishing venture and charged subscribers for its Bulletin required no different answer.  There will be cases where an occasion is privileged but where both maker and recipient of the matter complained of have voluntarily undertaken the reciprocal duties which make the occasion privileged.  Howe & McColough was such a case.  Sometimes, as again was the case in Howe & McColough, there may be a contract between the maker and the recipient.  Unlike Macintosh, however, no adverse consequence followed in this case from the publisher having a motive to profit from the publication.  The material which the respondent sought to publish was not, as Lord Macnaghten described the subject of the respondents' business in Macintosh, "the characters of other people"[36].  Rather, the material concerned how to keep people safe from workplace injury.

    [36](1908) 6 CLR 303 at 306; [1908] AC 390 at 400.

26. What set the respondent's Bulletin apart from some other paid publications was the narrow focus of both its subject matter and its readership.  Because its subscribers were only those responsible for occupational health and safety matters, and because it dealt only with those matters, there was that reciprocity of duty or interest between maker and recipient which attracted qualified privilege.  The circumstances of publication were, therefore, very different from those in which the general news media deal with matters of political or other interest.  The premise for the development of the common law that was made in Lange v Australian Broadcasting Corporation[37] was that only in exceptional cases had the common law recognised a duty to publish or interest in publishing defamatory matter to the general public[38].  To hold that the occasion of publication of the matter complained of in this matter was privileged does not challenge that premise.  In the present matter there was no publication to the general public.  The occasion of the publication of the matter of which the appellant complained was rightly held in the courts below to be a privileged occasion.

    [37](1997) 189 CLR 520 at 570.

    [38]Duncombe v Daniell (1837) 8 Car & P 222 [173 ER 470]; Adam v Ward [1917] AC 309; Chapman v Ellesmere (Lord) [1932] 2 KB 431; Telegraph Newspaper Co Ltd v Bedford (1934) 50 CLR 632; Lang v Willis (1934) 52 CLR 637; Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448; Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211 at 261.

    Connection with a privileged occasion

27. As noted earlier, the Court of Appeal divided in opinion about the second of the issues argued in this Court:  whether the matter which defamed the appellant was sufficiently connected to the privileged occasion to attract the defence.  The majority of the Court of Appeal was right to conclude that it was.  Whether other statements, in other subscription journals, would attract such a defence is a matter to be decided as and when the occasion arises, according to the facts of the particular case.

28. The article published in the respondent's Bulletin was entitled "MSDS copyright case dismissed".  (Material safety data sheets are often called "MSDS".)  The first paragraph of the article read:  "Material safety data sheets should not be too restricted by copyright – they should as much as possible be available to enforce OH&S, according to a Federal Court ruling in the past fortnight."  The article then contained extensive quotations from the Federal Court's reasons for decision in the ACOHS case as well as commentary on what had been decided.  The article said that ACOHS had sued the publishers of the Infax newsletter "which had printed a report claiming ACOHS was one of two companies Bialkower successfully prosecuted for MSDS copyright infringement".  It went on to say that the publishers "had engaged in false and misleading conduct by publishing an incorrect report".

29. The matter of which the appellant complained had as its subject the use that persons other than the copyright owner might make of material safety data sheets.  That subject was evidently connected to occupational health and safety.  The particular parts of the matter published by the respondent which defamed the appellant related to that subject.  The defamatory matter related to the subject because it, like the rest of the matter published, concerned the use that others might make of material safety data sheets.  It said that to assert that there had been "successful[] prosecut[ion] for MSDS copyright infringement" had been held to be "false and misleading conduct".  That the article wrongly identified the appellant as having published this assertion did not alter or reduce the connection between the privileged occasion and the defamatory matter.

30. Communication of the statement, that to assert successful prosecution for MSDS copyright infringement had been held to be false and misleading conduct, fulfilled the reciprocal duties or interests of the parties in the communication of information about occupational health and safety.

    An inaccurate report of court proceedings

31. The appellant submitted that a defence of qualified privilege was not available because the defamation was contained in what purported to be, but was not, a fair and accurate report of court proceedings.  It was said that the "doctrinal basis for the defence of fair and accurate report of court proceedings is such that it axiomatically eclipses any particular relationship" which might found a defence of qualified privilege.

32. This, the third of the issues argued in this Court, can be dealt with shortly.  The defences of qualified privilege and fair and accurate report have developed separately and differently[39].  That separate development may have occurred only in the nineteenth century[40], but it was inevitable.  Each form of defence assumes the making of a defamatory statement.  The focus of the defence of fair and accurate report, however, is necessarily directed to the quality of a report of what has taken place elsewhere.  By contrast, because qualified privilege extends to all manner of communications between persons, its focus is upon what duty or interest joined the parties, and how the defamatory material related to the privileged occasion.

    [39]Curry v Walter (1796) 1 B & P 525 [126 ER 1046]; R v Wright (1799) 8 TR 293 [101 ER 1396].

    [40]Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 215 per Dawson, McHugh and Gummow JJ.

33. Because the two defences are so different, and are directed to radically different problems, one is not to be understood as superior to the other.  Each has its proper work to do.  When, as here, it is thought that the two may intersect in some way, it is important not to begin from some assumption that only one can be engaged.  Yet that was the premise for this aspect of the appellant's argument:  that unless the respondent's report of the court proceedings brought by ACOHS was fair and accurate, the respondent could have no defence of qualified privilege.  The premise should be rejected.

34. It is right to say that because the report was inaccurate (in describing the individual rather than his company as publisher) the respondent could not rely on a defence of fair and accurate report of court proceedings.  But it by no means follows that no other defence was available.  Contrary to the appellant's submissions, what was called "the internal coherence of the law of defamation" does not require that conclusion.  The separate development of the defence of qualified privilege and the defence of fair and accurate report reveals that to be so, and nothing in the Defamation Act denies it. As noted earlier, s 11 of that Act says that the provision of a defence by Pt 3 of the Act "does not of itself vitiate, diminish or abrogate any defence or exclusion of liability available apart from this Act".

35. The defence of qualified privilege was available.  The absence of a defence of fair and accurate report of judicial proceedings required no different conclusion.  The appeal should be dismissed with costs.

36. McHUGH J.   "When New York Times Co v Sullivan was decided, Alexander Meiklejohn, the philosopher of free speech, said it was 'an occasion for dancing in the streets.'"  So wrote Anthony Lewis, the legal columnist for the New York Times, in his book Make No Law:  The Sullivan Case and the First Amendment[41].  Australia has no First Amendment to celebrate.  But, as it appears to me, the majority decision in this case goes beyond any decision that could be rendered under the First Amendment.  It may not cause any dancing in the streets, but it is likely to be celebrated in the offices of the publishers of subscription magazines dealing exclusively with subjects of public interest and it will almost certainly be celebrated beyond that newly privileged group of publishers.

    [41](1991) at 200.

37. The majority decision holds that an occasion of qualified privilege arises when matter is voluntarily published to subscribers concerning a subject of public interest, if the subscribers have a business or professional responsibility for that subject.  If they have that responsibility, the occasion is privileged even where, as here, the subject matter is described at a high level of abstraction – "occupational health and safety" or a "guide to workplace health and safety".  It is possible to imagine more abstract statements of a subject of public interest, but there is certainly nothing concrete in the description of the subject matter in this case.  Thus, the majority decision appears to protect the extensive publication of defamatory statements, true or false, that can be related to a widely defined subject of public interest when they are published to persons who have some responsibility for matters falling within the subject of interest.

38. At least inferentially, the majority decision also holds that the occasion is privileged even though the defamatory matter is not itself part of the subject of public interest and no part of that subject contains defamatory matter.  Necessarily involved in the majority decision, given the facts of the case, is the holding that qualified privilege protects defamatory matter even though it is merely explanatory of, or related or incidental to, the subject of public interest and would not be published on an occasion of qualified privilege if published by itself.  Indeed, the judgment of the Court of Appeal, which the majority decision affirms, expressly held that it was sufficient that the defamatory matter was explanatory of the subject of public interest.  Nor did it matter, in the Court of Appeal's view, that the defamatory matter would not be published on an occasion of qualified privilege if published by itself.  The majority decision also appears to treat the publication of the subscription magazine itself, and not the publication of the article that gave rise to the defamation, as the occasion of qualified privilege.

39. So the present case will inevitably stand as authority for the proposition that a paid-for communication such as a safety bulletin containing defamatory matter relating to occupational health and safety matters sent to subscribers responsible for occupational health and safety matters is published on an occasion of qualified privilege.  The result is that principles applied by common law judges for 200 years, principles that were carefully crafted to balance the competing demands of protection of reputation and freedom of speech, have been outflanked, if indeed their substance has not been repudiated.  Certainly, the decision blunts the application of those principles.

40. The consequences of the majority decision may be far reaching.  At the least, it must mean that trade and professional journals sent to paid subscribers are published on an occasion of qualified privilege and that defamatory imputations concerning any person that can be related to that trade or profession are protected communications.  A medical journal that falsely stated that a person had died because of a particular doctor's negligent diagnosis would therefore be a protected communication.  So would a legal journal that falsely reported the professional misconduct of a practitioner or judge or the incompetence of a journalist writing on legal matters.  Except in those cases where the plaintiff can prove malice, the defendant will escape liability without the necessity to prove truth or fair comment.

41. The majority decision asserts that finding qualified privilege in this case is no licence to defame.  But it is certainly a licence for the stupid and careless, as well as the ignorant, to defame.  Ignorance, carelessness and stupidity are not evidence of malice, and their presence does not destroy an occasion of qualified privilege.  Once the occasion is privileged, the protection will not be defeated because the publisher was ignorant, careless or stupid.

42. Moreover, it is difficult to see how the effect of the decision can be confined to trade and professional journals.  Any subscription magazine concerning general health and consumer matters would seem to fall within the ambit of the decision, at all events if the subscribers are mainly persons who have responsibilities in respect of health and consumer matters.  Specialist publications concerning companies sent to investors, credit officers and other persons responsible for financial matters are also arguably within the ambit of the decision.  And it may well be that the publication of a trade union or trade association journal to members of organisations responsible for advancing and protecting the interests of those members is published on an occasion of qualified privilege.  Indeed, there are numerous instances of subscription journals dealing with matters of public importance or interest.  The potential scope of this decision's application in those cases is very great, particularly where persons responsible for matters pertaining to that subject matter are the chief recipients of the journals.

    The issues

43. The appeal, which is brought from an order of the Court of Appeal of New South Wales, gives rise to two questions of public importance and one subsidiary question in the law of defamation.  First, if the law of qualified privilege would otherwise protect defamatory matter, is the privilege lost if that matter is contained in a report of court proceedings that is unfair?  Second, if the privilege is not lost, does the common law recognise the relationship between the publisher of an occupational health and safety bulletin and subscribers who are responsible for occupational health and safety matters as one that makes the publication of the bulletin to the subscribers an occasion of qualified privilege?  If the bulletin was published on an occasion of qualified privilege, a subsidiary question arises as to whether the defamatory matter was so irrelevant to the occasion of privilege that the privilege does not protect it.

    Statement of the case

44. Mr Rex Bashford sued Information Australia (Newsletters) Pty Ltd ("Information Australia") for damages for defamation in the Supreme Court of New South Wales.  His claim arose out of an article published by Information Australia in its Occupational Health and Safety Bulletin, dated 28 May 1997.  Subscribers to the bulletin – who total about 900 – pay an annual subscription of $395.  Its readers comprise persons with responsibility for occupational health and safety within their companies, agencies and government departments.

45. The article on which Mr Bashford sued arose out of a judgment given by Merkel J[42] in an action in the Federal Court of Australia in respect of misleading statements in a newsletter called Infax.  The main thrust of the article, however, concerned a cross-claim in that action brought by Mr Bernie Bialkower, one of the defendants, against ACOHS Pty Ltd ("ACOHS").  Mr Bialkower alleged that ACOHS had breached his copyright in certain safety data sheets.  He had sought an injunction against further infringement of that copyright, but Merkel J dismissed the cross-claim.  His Honour found that no breach of copyright had occurred and he declared that in any event he would have refused relief on discretionary grounds that included the public interest in not impeding the disclosure of data sheets concerned with industrial safety.

    [42]ACOHS Pty Ltd v R A Bashford Consulting Pty Ltd (1997) 144 ALR 528.

46. In its action, ACOHS had sought relief against R A Bashford Consulting Pty Ltd ("Bashford Consulting"), Mr Bialkower and Risk Management Concepts Pty Ltd ("Risk Management") in respect of misleading statements published in the Infax newsletter.  The newsletter was published by Risk Management under a business venture between it and Bashford Consulting.  Merkel J found both companies and Mr Bialkower liable for the harm caused by the misleading statements.  His Honour awarded damages of $20,000 to ACOHS, but declared that Bashford Consulting and Risk Management were entitled to an indemnity of 75% of the damages and costs from Mr Bialkower.  Bashford Consulting was found liable, not expressly as a publisher but as a principal of a business in the course of which Risk Management published the newsletter.  It was the report of these findings of Merkel J that gave rise to Mr Bashford's claim for defamation.  He was not a party to the action or cross-claim and was not mentioned by Merkel J in his judgment.  However, the article in the bulletin concluded:

    "In respect of the initial claim, Justice Merkel found the publishers of Infax newsletter, RA Bashford and Risk Management Concepts, had engaged in false and misleading conduct by publishing an incorrect report – there had been no such copyright case – and that Bialkower was the source of the information and authorised its publication.

    He ruled publication of the 'seriously misleading statements caused harm to ACOHS's repute and goodwill and that harm is likely to have led to some loss of business or custom'.

    He awarded ACOHS $20,000 damages and ordered Bialkower, RA Bashford and Risk Management Concepts to pay their legal costs."

47. In accordance with the law of New South Wales, a jury had to determine what, if any, imputations concerning Mr Bashford were contained in the bulletin article and whether they were defamatory.  But the validity of the defences to the publication and the assessment of damages had to be determined by a judge without a jury.  In an earlier hearing, a jury determined that the bulletin contained the defamatory imputation that "[Mr Bashford] by publishing a false report concerning ACOHS Pty Limited had been found by the Federal Court of Australia liable to ACOHS Pty Limited in damages and costs for causing it harm and loss".

48. Subsequently, the case came before Davies AJ to determine the defences and to assess the damages. Information Australia relied on four defences – the "no harm" defence under s 13 of the Defamation Act 1974 (NSW), the defence of truth under s 15 of the Defamation Act, the defence of contextual truth under s 16 of the Defamation Act and the common law defence of qualified privilege. It did not rely on the defence of statutory qualified privilege given by s 22 of the Defamation Act – apparently because it believed that it could not establish that its conduct was reasonable, as required by that section.

49. Davies AJ found that the bulletin article contained two erroneous statements concerning Mr Bashford.  First, it used the name "R A Bashford", not "R A Bashford Consulting Pty Ltd", and thereby referred to him personally.  Second, it suggested that Mr Bashford was a publisher of the Infax newsletter when neither he nor his company was the publisher.  As a result, his Honour rejected the defences of truth and contextual truth.  His Honour also rejected the "no harm" defence sought to be relied upon by Information Australia.  However, he upheld the defence of common law qualified privilege.

50. His Honour held that the principal part of the article, dealing with the cross-claim, was published on a privileged occasion because Mr Bialkower's cross-claim raised a matter of general interest to persons operating in the field of occupational health and safety.  His Honour said that the part of the article concerning misleading and deceptive conduct – which gave rise to the defamation – was not of interest to persons operating in the occupational health and safety field.  He found that, if published on its own, it would not have been the subject of qualified privilege.  But his Honour said that that part of the article was not irrelevant to the matters involved in the cross-claim.  Consequently, the defamatory matter was also published on a privileged occasion.  He also rejected Mr Bashford's argument that qualified privilege could not attach to a report of legal proceedings if the report was not fair and accurate.  His Honour found that there was no evidence of malice or improper purpose on the part of Information Australia that defeated the privilege.  He entered judgment for Information Australia but, in case his findings on liability should be reversed on appeal, he assessed the damages at $25,000.

51. The Court of Appeal of New South Wales by majority (Hodgson JA with Sheller JA agreeing, Rolfe AJA dissenting) dismissed an appeal brought by Mr Bashford.  All three judges agreed the article was published on an occasion of qualified privilege in so far as it dealt with the determination of the cross-claim.  But Rolfe AJA held that the publication of the defamatory matter was not relevant to the occasion.

    Qualified privilege

52. It is convenient to determine whether any part of the article was published on an occasion of qualified privilege before discussing whether the defence of qualified privilege can ever protect the publication of an unfair report of court proceedings.  Mr Bashford contends that, for the purposes of the doctrine of qualified privilege, Information Australia had no relevant duty to publish the article and no relevant interest in publishing it.  He accepts that the bulletin subscribers had an interest in the judgment of Merkel J so far as it related to Mr Bialkower's cross-claim, but he submits that this is insufficient to establish a privileged occasion.  He contends that the duty must be a duty to publish the matter complained of, not the journal in which it appears.  He claims that in the Court of Appeal Hodgson JA erred in saying that it was sufficient that there was a duty, moral and legal, to include matters of this type in the newsletter.  Mr Bashford claims that the statement is contrary to principle and to the decided cases – which speak in terms of the duty to make the communication in question.

53. At common law, a defamatory statement receives qualified protection when it is made in discharge of a duty or the furtherance or protection of an interest of the maker of the statement or some person with whom the publisher has a direct business, professional or social connection, and the recipient of the statement has a corresponding duty to receive or interest in receiving it[43].  Lord Campbell CJ stated the principle in Harrison v Bush[44] as follows:

    "A communication made bona fide upon any subject matter in which the party communicating has an interest, or in reference to which he has a duty, is privileged, if made to a person having a corresponding interest or duty, although it contain criminatory matter which, without this privilege, would be slanderous and actionable."

    [43]Toogood v Spyring (1834) 1 Cr M & R 181 [149 ER 1044]; Adam v Ward [1917] AC 309; Watt v Longsdon [1930] 1 KB 130; Mowlds v Fergusson (1940) 64 CLR 206; Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211.

    [44](1855) 5 E & B 344 at 348 [119 ER 509 at 512].

54. The common law describes the occasion on which such a communication is made as an occasion of qualified privilege[45].  The protection is lost – hence the name qualified privilege – if the occasion was used for a purpose or a motive foreign to the duty or interest that gave rise to the occasion[46].  In determining whether the occasion was privileged, the court examines all the circumstances of the case.  They include the nature of the defamatory communication, the status or position of the publisher, the number of recipients and the nature of any interest they had in receiving it, and the time, place and manner of, and reason for, the publication.  After considering these matters, the court makes a judgment as to whether the publisher had a duty or interest that justified making the publication and whether the recipients, or some of them, had a duty to receive or interest in receiving it.  Evaluating these questions of duty and interest usually involves questions of public policy.  In Toogood v Spyring[47], Parke B said that "[i]f fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society".  Griffith CJ cited this passage with approval in Howe & McColough v Lees[48].There, Griffith CJ explained[49] that the reference to the welfare of society did not mean that the person who made the communication was under an obligation to publish and was justified in publishing it to the public at large.  Rather, according to his Honour, the phrase means that the interests of society in general require that a communication made under the particular circumstances to the particular person should be protected.

    [45]In Adam v Ward [1917] AC 309 at 334, Lord Atkinson said that a privileged occasion arises "where the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it." Lord Atkinson said that "[t]his reciprocity is essential."

    [46]Adam v Ward [1917] AC 309 at 334; Mowlds v Fergusson (1940) 64 CLR 206 at 210-211, 214-215; Roberts v Bass (2002) 212 CLR 1 at 26 [62].

    [47](1834) 1 Cr M & R 181 at 193 [149 ER 1044 at 1050].

    [48](1910) 11 CLR 361 at 368.

    [49](1910) 11 CLR 361 at 368-369.

55. It is of the first importance to understand that references to concepts such as "the common convenience and welfare of society" and similar phrases record a result and explain why the communication and the relevant duty or interest gave rise to an occasion of qualified privilege.  Such concepts are not the determinants of whether the occasion is privileged.  They must be distinguished from the question whether society would recognise a duty or interest in the publisher making, and the recipient receiving, the communication in question.  As Jordan CJ pointed out in Andreyevich v Kosovich[50], it is necessary to "show by evidence that both the givers and the receivers of the defamatory information had a special and reciprocal interest in its subject matter, of such a kind that it was desirable as a matter of public policy, in the general interests of the whole community of New South Wales, that it should be made with impunity, notwithstanding that it was defamatory of a third party." (emphasis added)  It is only when the defendant has a duty to publish or an interest in publishing the particular communication and the recipient has a corresponding duty or interest that the occasion is privileged.  It is only when this reciprocity of duty and interest is present that the common law regards publication of the communication as being for the common convenience and welfare of society.

    [50](1947) 47 SR (NSW) 357 at 363.

56. With great respect, it was the Court of Appeal's failure to appreciate that the concept of the common convenience and welfare of society describes a result reached on the ground of reciprocity of duty and interest that erroneously led it to find that the bulletin was published on a privileged occasion.  The Court of Appeal began with the premise that it was for the common convenience and welfare of society to publish material concerning occupational health and safety matters.  Commencing with that premise, the Court of Appeal naturally concluded that the publication was made on a privileged occasion because of the responsibilities of the recipients and the contractual obligation of Information Australia to furnish them with information on safety matters.

57. After concluding that it is for the common convenience and welfare of society to publish matter concerning occupational health and safety matters, the Court of Appeal held that Information Australia had a duty to publish this class of matter and that the recipients had an interest in receiving this class of matter.  Thus, the Court of Appeal held that Information Australia had a duty to publish matter, described at a high level of abstraction, without regard to the subject matter of the particular defamation or, for that matter, whether the matter was defamatory or non-defamatory.  The Court of Appeal then held that, because the defamatory matter sued upon was incidental to, or explanatory of, matter falling within this abstract description, the occasion of publication was privileged.

58. With respect, this analysis of the issues turns the law of qualified privilege on its head.  A plea that defamatory matter was published on an occasion of qualified privilege is a plea of confession and avoidance.  It accepts that the communication is defamatory, that the defamatory matter may be false and that its publication has caused or may cause harm to the plaintiff.  It confesses the publication of defamatory matter, but contends that the publication is immune from liability because the public interest requires that the duty and interest of the publisher and recipient should be preferred to the protection of the plaintiff's reputation.  The court cannot determine these issues of duty and interest without characterising the subject matter of the defamation.  It cannot judge whether the particular duty and interest are so necessary for the proper functioning of society that the occasion should be privileged – despite the harm that the communication may cause – unless it knows what is the nature of the defamatory communication that allegedly gives rise to the duty and interest.  A defendant who claims that the occasion was privileged must show that "both the givers and the receivers of the defamatory information had a special and reciprocal interest in its subject matter"[51] such that public policy requires that the defendant be immune from liability for the publication.

    [51]Andreyevich v Kosovich (1947) 47 SR (NSW) 357 at 363.

59. Commencing with the premise that it is for the common convenience and welfare of society to publish matter concerning occupational health and safety also led the Court of Appeal into two further errors that are related to each other.  First, it caused the Court to fail to define precisely and concretely what the interest of each recipient was.  Second, it caused the Court to equate the issue of relevance with the connection between the defamatory matter and the report of Mr Bialkower's cross-claim, instead of the connection between the defamatory matter and the occasion of qualified privilege.

60. Although it is convenient for text book writers and sometimes judges to classify occasions of qualified privilege into broad categories such as replies to attacks and interests arising out of employment, the practical working of the doctrine of qualified privilege requires that the occasion be defined concretely and precisely.  That ordinarily requires the interest of the recipient to be defined first, and to be defined concretely and precisely, although sometimes it is necessary first to define the duty in that way.  Unless the interest is so defined, the issues of duty, occasion, relevance and malice cannot be determined – at all events correctly. 

61. Thus, it is insufficient to describe the interest of an employer as an interest in obtaining information about the character of a potential employee.  It is necessary not only to know the name of the employee but also what position that person will occupy and often what he or she will be doing.  Until these things are known, it is not possible to know whether the publisher had a reciprocal duty to answer a request for information concerning the employee and whether the defamatory answer given is relevant to the request that together with the answer constitutes the occasion.  Similarly, where the defendant asserts that he or she had an interest in answering an attack, it is necessary to know what the attack was and how and to whom it was made.  Only when that is known can the court determine whether the defendant's defamatory response was relevant to the occasion, went beyond what was necessary to protect the defendant's interests or was used for a purpose foreign to the occasion.

62. By regarding the interest of the bulletin's recipients as simply an interest in receiving information concerning occupational health and safety matters, the Court of Appeal appears to have concluded that Information Australia's contractual promise to publish the bulletin to each subscriber constituted the required reciprocal duty.  If the Court of Appeal had attempted to define the interest of each recipient more concretely and precisely, it would have seen that each recipient had no interest that created a reciprocal duty in Information Australia to publish the defamatory matter concerning Mr Bashford.

63. The correct approach in determining the issue of qualified privilege is radically different from the approach of the Court of Appeal.  In determining the question of privilege, the court must consider all the circumstances and ask whether this publisher had a duty to publish or an interest in publishing this defamatory communication to this recipient.  It does not ask whether the communication is for the common convenience and welfare of society.  It does not, for example, ask whether it is for the common convenience and welfare of society to report that an employee has a criminal conviction.  Instead, it asks whether this publisher had a duty to inform this recipient that the latter's employee had been convicted of a particular offence and whether this recipient had an interest in receiving this information.  That will depend on all the circumstances of the case.  Depending on those circumstances, for example, there may be no corresponding duty and interest where the conviction occurred many years ago or where it could not possibly affect the employment.  As an Irish court has pointed out[52]:

    "It is not enough to have an interest or a duty in making a communication, the interest or duty must be shown to exist in making the communication complained of." (original emphasis)

    [52]Lynam v Gowing (1880) 6 LR Ir 259 at 268-269.

64. The correct approach to determining whether the occasion is privileged is contained in a passage in Baird v Wallace-James[53] that members of this Court have cited[54] with approval.  In Baird, Earl Loreburn said[55]:

    "In considering the question whether the occasion was an occasion of privilege the Court will regard the alleged libel, and will examine by whom it was published, to whom it was published, when, why, and in what circumstances it was published, and will see whether these things establish a relation between the parties which gives a social or moral right or duty; and the consideration of these things may involve the consideration of questions of public policy". (emphasis added)

    [53](1916) 85 LJ PC 193.

    [54]Telegraph Newspaper Co Ltd v Bedford (1934) 50 CLR 632 at 646-647; Mowlds v Fergusson (1940) 64 CLR 206 at 214.

    [55](1916) 85 LJ PC 193 at 198.

    Statements made in answer to attacks or requests for information

65. In determining whether the communication was made to discharge a duty or to protect or further an interest, the common law has drawn a distinction between statements replying to a request for information or responding to an attack and statements that are volunteered by the publisher.  Where the defamatory communication responds to an attack on its publisher or some person connected with him or her, the common law has adopted a liberal approach to the question of duty or interest.  Not only has it usually held[56] that the publisher had a duty to respond or an interest in responding but, as a consequence, it has taken a very liberal view of what constitutes an "interest" in those who receive the response.  In Mowlds v Fergusson[57], Dixon J said:

    "Where the defamatory matter is published in self‑defence or in defence or protection of an interest or by way of vindication against an imputation or attack, the conception of a corresponding duty or interest in the recipient must be very widely interpreted."

    [56]Laughton v The Bishop of Sodor and Man (1872) LR 4 PC 495; Adam v Ward [1917] AC 309; Loveday v Sun Newspapers Ltd (1938) 59 CLR 503.

    [57](1940) 64 CLR 206 at 214-215.

66. So, in Adam v Ward[58], the House of Lords held that the publication of a letter in the British and Colonial Press was made on an occasion of qualified privilege when it was sent by the Army Council to protect an army officer who had been falsely attacked in Parliament.  Lord Atkinson said[59] that the publication was not too wide because "every subject of the Crown ... has, and must have, an interest in the British Army".  Similarly, in Loveday v Sun Newspapers Ltd[60], this Court held that, where the plaintiff had chosen the public press for the purpose of publicising a complaint, he could not complain if the defendant used the public press to reply to the plaintiff's criticism.  Starke J said[61]:

    "A man who attacks another in or through a newspaper cannot complain if that other repels or refutes the attack for the purpose of vindicating himself.  He has appealed to the public and provoked or invited a reply.  A person attacked has both a right and an interest in repelling or refuting the attack, and the appeal to the public gives it a corresponding interest in the reply.  Occasions of this kind are privileged and communications made in pursuance of a right or duty incident to them are privileged by the occasion."

    [58][1917] AC 309.

    [59][1917] AC 309 at 343.

    [60](1938) 59 CLR 503.

    [61](1938) 59 CLR 503 at 515.

67. Dixon J said[62]:

    "If the criticism had been addressed to the public at large and the communication had not been confined to specific individuals, the privilege would cover a publication of the answer in the newspapers or in any other manner that would reach the public generally.  A privilege would be of no value if the means of exercising it were not also protected.  If the party attacked is given a privilege to reply through the public press, the publisher of a newspaper who allows the use of his columns for the purpose must also enjoy an attendant privilege."

    [62](1938) 59 CLR 503 at 519.

68. Similarly, the common law has taken a liberal view in respect of the existence of a duty to answer requests for information about the plaintiff.  Rarely will the duty be one enforceable by mandamus or other legal action.  It is sufficient that the duty is social or moral[63].  Admittedly, common law judges of great experience "have all felt great difficulty in defining what kind of social or moral duty ... will afford a justification"[64].  In Stuart v Bell, however, Lindley LJ said[65]:

    "I take moral or social duty to mean a duty recognised by English people of ordinary intelligence and moral principle, but at the same time not a duty enforceable by legal proceedings".

    [63]Watt v Longsdon [1930] 1 KB 130 at 152.

    [64]Whiteley v Adams (1863) 15 CB (NS) 392 at 418 [143 ER 838 at 848].

    [65][1891] 2 QB 341 at 350.

69. A common case of a moral or social duty in this context is the duty to answer a request by a potential employer for information concerning the character, capacity or honesty of an employee[66].  When such a request is made, the common law recognises a duty in the recipient of the request to answer the enquiry and to state fully and honestly all that he or she believes that he or she knows about the employee that is relevant to the enquiry.  The answer cannot be used as a licence to defame the employee.  It must be fairly and reasonably relevant to the enquiry.  If the employer is asked whether the employee is fit to be employed as a gardener, it is unlikely that the occasion of privilege would extend to details about the employee's convictions for negligent driving.

    [66]Hodgson v Scarlett (1818) 1 B & Ald 232 at 239-240 [106 ER 86 at 88]; Mead v Hughes (1891) 7 TLR 291.

70. Similar to the case of information concerning an employee is an answer to a request for information by a person who intends to deal with a businessperson.  If the request is made to someone who has information about the business dealings of a businessperson, the common law recognises a duty to give a full, honest and relevant answer concerning that person[67].  In Waller v Loch, Brett LJ said[68]:

    "If a person who is thinking of dealing with another in any matter of business asks a question about his character from some one who has means of knowledge, it is for the interests of society that the question should be answered, and if answered bona fide and without malice, the answer is a privileged communication."

    [67]Bromage v Prosser (1825) 4 B & C 247 [107 ER 1051]; Storey v Challands (1837) 8 C & P 234 [173 ER 475]; Robshaw v Smith (1878) 38 LT 423; Waller v Loch (1881) 7 QBD 619 at 621; London Association for Protection of Trade v Greenlands Ltd [1916] 2 AC 15 at 42.

    [68](1881) 7 QBD 619 at 622.

71. But not every relevant answer to a request for information concerning the character, reputation or credit-worthiness of another is published on an occasion of qualified privilege[69].  The occasion will not be privileged unless the person making the enquiry has a legitimate interest in obtaining the information[70].  Interest for this purpose – and the law of qualified privilege generally – means more than an interest in the information "as a matter of gossip or curiosity"[71].  The interest must be a social, moral or economic interest that is sufficiently tangible for the public interest to require its protection[72].  The interest of the recipient, said Evatt J in Telegraph Newspaper Co Ltd v Bedford[73], must be "a real and direct personal, trade, business or social concern."  The occasion will not be privileged simply because the defendant believes that the recipient had a relevant interest in receiving or duty to receive the communication[74].

    [69]Force v Warren (1864) 15 CB (NS) 806 at 808 [143 ER 1002 at 1003].

    [70]Greenlands Ltd v Wilmshurst and the London Association for Protection of Trade [1913] 3 KB 507 at 541.

    [71]Howe & McColough v Lees (1910) 11 CLR 361 at 398.

    [72]cf Howe & McColough v Lees (1910) 11 CLR 361 at 377.

    [73](1934) 50 CLR 632 at 662.

    [74]Hebditch v MacIlwaine [1894] 2 QB 54 at 59.

72. Although answers to enquiries about the character, reputation and credit-worthiness of former employees and businesspersons represent the most common instances of the common law recognising a duty to give information, the categories of duty are not closed.  The law will recognise a duty whenever "the great mass of right-minded men in the position of the defendant would have considered it their duty, under the circumstances, [to make the communications]"[75].  Thus, where a person suspects someone of committing a crime, being dishonest or engaging in misconduct, the common law recognises a duty in that person to give information concerning what he or she knows about the matter to a person who has requested the information and has a legitimate interest in acquiring it[76]. 

    [75]Stuart v Bell [1891] 2 QB 341 at 350.

    [76]Cockayne v Hodgkisson (1833) 5 C & P 543 [172 ER 1091]; Kine v Sewell (1838) 3 M & W 297 [150 ER 1157]; Beatson v Skene (1860) 5 H & N 838 [157 ER 1415].

73. Different considerations apply when the defendant volunteers defamatory information.  Ordinarily the occasion for making a volunteered statement will be privileged only where there is a pressing need to protect the interests of the defendant or a third party or where the defendant has a duty to make the statement to the recipient.  The common law has generally perceived no advantage to society in giving qualified privilege to volunteered statements in the absence of a pre-existing reciprocity of interest between the defendant and the recipient[77].  It has taken the view that the reputation of the defamed should be preferred over the freedom to publish volunteered but defamatory statements that may or may not be true.  In most cases, a defendant who publishes a defamatory statement that neither protects his or her interests nor answers a request for information will have to rely on some other defence, such as truth or fair comment.  Thus, in Guise v Kouvelis[78], a majority of this Court held that the occasion was not privileged when a club committeeman, who was watching a game of cards, immediately informed about 50 or 60 members and non-members in the room that one of the players had cheated when he claimed that there had been a misdeal.  The majority rejected the defendant's claim that he had a moral or social duty to say what he did or that he was protecting his own interests or the common interests of himself and other members of club.  Latham CJ said[79] that it could "hardly be contended that the defendant was under a duty to shout out to the room that the plaintiff was a crook even if he believed that he was."  Starke J said[80] that the committeeman clearly "had no legal duty to make any such statement and no reasonable right-minded man in the circumstances and in the position of the [defendant] ought, in my judgment, to have made it."  Dixon J, who dissented, thought that the defendant did have a social duty to expose immediately the cheating that he believed had occurred.  His Honour said[81]:

    "The test of privilege that is in point is the defendant's interest or social duty in impugning then and there the plaintiff's play on the footing of what he had witnessed and on the other side the plaintiff's interest therein, which can hardly be doubted.  The question and the interest of the bystanders is by no means immaterial, because it affects the extent of the protection, the extent of publication protected.  But that is not the essential basis of the privilege, it is rather incidental."

    [77]Wyatt v Gore (1816) Holt NP 299 [171 ER 250]; Brooks v Blanshard (1833) 1 C & M 779 [149 ER 613]; Wenman v Ash (1853) 13 CB 836 [138 ER 1432]; Dickeson v Hilliard (1874) LR 9 Exch 79; Thomas v Moore [1918] 1 KB 555; Guise v Kouvelis (1947) 74 CLR 102; Andreyevich v Kosovich (1947) 47 SR (NSW) 357.

    [78](1947) 74 CLR 102 (Latham CJ, Starke, McTiernan and Williams JJ, Dixon J dissenting).

    [79](1947) 74 CLR 102 at 111.

    [80](1947) 74 CLR 102 at 114.

    [81](1947) 74 CLR 102 at 122.

74. Nevertheless, an occasion may be privileged when the defendant has volunteered a statement instead of answering a request or has made the statement to protect the defendant's or a third party's interests.  As Jessel MR pointed out in Waller v Loch[82], "[i]t is not necessary in all cases that the information should be given in answer to an inquiry."  In all cases, however, the fact that the defendant has volunteered the statement is an important – often decisive – factor in determining whether the occasion was privileged.  In Macintosh v Dun, Lord Macnaghten said[83]:

    "Communications injurious to the character of another may be made in answer to inquiry or may be volunteered.  If the communication be made in the legitimate defence of a person's own interest, or plainly under a sense of duty such as would be 'recognized by English people of ordinary intelligence and moral principle'[84], (to borrow again the language of Lindley LJ), it cannot matter whether it is volunteered or brought out in answer to an inquiry.  But in cases which are near the line, and in cases which may give rise to a difference of opinion, the circumstance that the information is volunteered is an element for consideration certainly not without some importance."

    [82](1881) 7 QBD 619 at 621.

    [83](1908) 6 CLR 303 at 305-306; [1908] AC 390 at 399.

    [84]Stuart v Bell [1891] 2 QB 341 at 350.

75. In cases where imminent injury to the person or loss or damage to property is concerned, the common law has given a wide protection to defamatory communications initiated by a defendant where they are necessary to protect the immediate interests of a person – usually the recipient[85].  In Davies v Snead, Blackburn J said[86]:

    "[W]here a person is so situated that it becomes right in the interests of society that he should tell to a third person certain facts, then if he bona fide and without malice does tell them it is a privileged communication."

    [85]Coxhead v Richards (1846) 2 CB 569 at 596 [135 ER 1069 at 1080].

    [86](1870) LR 5 QB 608 at 611.

76. So in Stuart v Bell[87], the Court of Appeal held that the occasion was privileged where the defendant, after receiving information from a chief constable, informed the plaintiff's master that the plaintiff was suspected of stealing a watch.  Similarly, a former employer may ordinarily inform a potential employer of the misconduct of a former employee even though the potential employer has made no request for a reference[88].  And an employer who has dismissed the plaintiff for dishonesty acts on an occasion of qualified privilege when the employer informs the person who gave the reference that led to the plaintiff's employment of the dishonesty[89].  So does a relative who warns a woman about the bad character of the man that she proposes to marry[90].  So too does a solicitor who warns a client about the potential harm to the client's interests even though the solicitor has not been consulted on the particular matter[91].  In a case like that the previous relationship between the solicitor and the client may be sufficient to constitute an interest in the client and a social or moral duty in the solicitor that enables the solicitor to volunteer the defamatory communication.  Similarly, in Mowlds v Fergusson[92], this Court held that a former relationship between the defendant, a police officer, and a former Commissioner of Police constituted a sufficient interest in all the circumstances of the case to create a duty in the defendant to show a copy of a report to the former Commissioner.

    [87][1891] 2 QB 341.

    [88]Rogers v Clifton (1803) 3 Bos & P 587 at 592, 595 [127 ER 317 at 320, 321]; Pattison v Jones (1828) 8 B & C 578 [108 ER 1157].

    [89]Dixon v Parsons (1858) 1 F & F 24 [175 ER 609]; Fryer v Kinnersley (1863) 15 CB (NS) 422 [143 ER 849].

    [90]Todd v Hawkins (1837) 8 C & P 88 [173 ER 411].

    [91]Baker v Carrick [1894] 1 QB 838 at 841.

    [92](1940) 64 CLR 206.

77. But where neither life is in immediate danger nor harm to the person or injury to property imminent, the fact that the defendant has volunteered defamatory matter is likely to be decisive against a finding of qualified privilege.  Thus, the customer of a shopkeeper in answer to a request by a potential customer is entitled to give his or her opinion as to the quality of the shopkeeper's goods, and when he or she does so, the reply will be published on an occasion of qualified privilege.  But the case is different where the customer voluntarily defames the character or reputation of the shopkeeper to potential customers[93].  The point is well illustrated by the famous case of Toogood v Spyring[94].

    [93]Picton v Jackman (1830) 4 C & P 257 [172 ER 695]; Storey v Challands (1837) 8 C & P 234 [173 ER 475].

    [94](1834) 1 Cr M & R 181 [149 ER 1044].

78. In Toogood, the defendant required his landlord to effect repairs on the tenanted property; the landlord's agent sent out two workmen to do the work, one of whom was the plaintiff.  Later the defendant complained to the plaintiff in the presence of one Taylor that the plaintiff had misconducted himself in doing the work.  Still later the defendant repeated the charge to Taylor in the absence of the plaintiff and later again to the landlord's agent.  The Court of Exchequer held that the statements were made on occasions of qualified privilege, except for the statement made to Taylor in the absence of the plaintiff.  The Court held that both the plaintiff and the agent had such an interest in being informed of the charge against the plaintiff that the defendant was entitled to protect his interests by telling them of his concerns.  Taylor, however, had no interest in the matter that could justify the defendant telling him of the plaintiff's misconduct.

79. One class of case where the defendant is entitled to volunteer defamatory information to a third party is where a confidential relationship exists between the defendant and the third party and the defendant has a duty to protect the interests of that person[95].  In the absence of a confidential relationship between the parties, however, the common law has narrowly construed the situations that entitle a person to volunteer defamatory information concerning another.  In Macintosh v Dun[96], the Judicial Committee of the Privy Council held that qualified privilege did not attach to communications by a trade protection business to subscribers concerning the commercial standing of persons in New South Wales and elsewhere.  Lord Macnaghten, giving the reasons of the Committee, said[97]:

    "No doubt there was a specific request.  In response to that request the communication was made.  That much is clear.  But it is equally clear that the defendants set themselves in motion and formulated and invited the request in answer to which the information complained of was produced.  The defendants, in fact, hold themselves out as collectors of information about other people which they are ready to sell to their customers."

    [95]Wright v Woodgate (1835) 2 Cr M & R 573 [150 ER 244]; Todd v Hawkins (1837) 8 C & P 88 [173 ER 411]; Wilson v Robinson (1845) 7 QB 68 [115 ER 413]; Scarll v Dixon (1864) 4 F & F 250 [176 ER 552]; Stace v Griffith (1869) LR 2 PC 420; Henwood v Harrison (1872) LR 7 CP 606; Adams v Coleridge (1884) 1 TLR 84; Baker v Carrick [1894] 1 QB 838 at 841.

    [96](1908) 6 CLR 303; [1908] AC 390.

    [97](1908) 6 CLR 303 at 306; [1908] AC 390 at 399-400.

80. The Judicial Committee went on to hold that the defendants did not supply the information to subscribers from a sense of duty but as a matter of business and self-interest.  Having made that finding, the Judicial Committee said[98]:

    "Then comes the real question:  Is it in the interest of the community, is it for the welfare of society, that the protection which the law throws around communications made in legitimate self-defence, or from a bona fide sense of duty, should be extended to communications made from motives of self-interest by persons who trade for profit in the characters of other people?"

    The Judicial Committee answered the question in the negative.  It said[99]:

    "There is no reason to suppose that the defendants generally have acted otherwise than cautiously and discreetly.  But information such as that which they offer for sale may be obtained in many ways, not all of them deserving of commendation.  It may be extorted from the person whose character is in question through fear of misrepresentation or misconstruction if he remains silent.  It may be gathered from gossip.  It may be picked up from discharged servants.  It may be betrayed by disloyal employees.  It is only right that those who engage in such a business, touching so closely very dangerous ground, should take the consequences if they overstep the law."

    [98](1908) 6 CLR 303 at 306; [1908] AC 390 at 400.

    [99](1908) 6 CLR 303 at 306-307; [1908] AC 390 at 400.

81. Macintosh does not hold that qualified privilege cannot attach to a communication made for profit.  It is true that the Judicial Committee used the business nature of the communication to negate the conclusion that the defendants acted from a sense of duty.  But it went on to determine whether, despite the lack of duty, the business interest of the defendants was sufficient to make the occasion of publication one of qualified privilege.  The real basis of the decision was that the welfare of society was not furthered by giving qualified privilege to defamatory communications, whether true or untrue, made by a publisher who was a volunteer, who was not discharging any moral duty and whose sources might be unreliable or malicious, simply because of the business interest of the publisher.  That the communication was made for profit is relevant in determining whether the occasion was actuated by a social or moral duty and at common law[100] was once likely to be decisive in determining whether the occasion was privileged.  Nowadays, however, it is probably better in most cases to regard the issue of profit motive as neither advancing nor impairing a claim for qualified privilege.  That is to say, its presence does not ordinarily indicate that the defendant was not discharging a duty or protecting an interest that the common law will recognise.

    [100]The position is different in New South Wales when the case falls within s 22 of the Defamation Act 1974 (NSW).

82. Nor does Macintosh hold that qualified privilege cannot extend to statements concerning the credit of traders when the statements are made by or on behalf of a trade protection association.  This Court held to the contrary in Howe & McColough v Lees[101].  In Howe, the defendants were members of a stock salesmen association in Bendigo.  In accordance with the rules of the association, they reported to the secretary of the association that the plaintiff had failed to pay for stock bought at the Bendigo sales yards.  In turn, the secretary informed other members of the association that the plaintiff had defaulted.  The Court held that the defendants' report was made on an occasion of qualified privilege.  Griffith CJ said[102]:

    "Having regard to the nature of the business conducted by the members of the Bendigo association, I think that they were all mutually interested in knowing whether probable bidders at the auction sales were persons to whom the short credit allowed might be safely given.  The fact that a man had purchased at one sale was, in my opinion, sufficient foundation for regarding him as a probable bidder at another.  A communication with regard to his failure to meet his engagements was consequently relevant to the question of his solvency.  There was, therefore, in my opinion, a community of interest."

    His Honour went on to say[103]:

    "The communication now in question was in substance made in answer to a standing inquiry understood to be made on every Saturday by every member of the association to every other member in pursuance of the rules, the effect of which was:  Has any purchaser from you at the last sale made default?"

    [101](1910) 11 CLR 361.

    [102](1910) 11 CLR 361 at 370.

    [103](1910) 11 CLR 361 at 370-371.

216. To the facts stated in the letter should be added these which were found by Davies AJ at first instance:

     "It seems that [the appellant's] relief at the result of the Federal Court proceedings was shattered when he read the article in the Occupational Health and Safety Bulletin, which not only named him personally, but described him as one of the publishers.  [The appellant] apparently felt that all his efforts to distance himself from the Infax newsletter, efforts which he considered to have achieved success in the Federal Court proceedings, were destroyed by the article in the Occupational Health and Safety Bulletin."

     The trial

217. No apology was published.  The appellant sued the respondent in defamation in the Supreme Court of New South Wales.  By way of defence the respondent denied that it had defamed the appellant.  One of the imputations pleaded was found by a jury to have been conveyed and to be defamatory of the appellant:

     "that the Plaintiff, by publishing a false report concerning ACOHS Pty Ltd, had been found by the Federal Court of Australia liable to ACOHS Pty Ltd in damages and costs for causing it harm and loss".

218. It then fell for a judge of the Supreme Court (Davies AJ) to decide, in accordance with s 7A of the Defamation Act 1974 (NSW) ("the Act"), whether any of the other defences of the respondent were made out, and the damages for which the respondent was liable. Those defences in summary were: that the appellant was not likely to suffer harm pursuant to s 13 of the Act; of truth pursuant to s 15 of the Act; of contextual truth pursuant to s 16 of the Act; and of qualified privilege at common law. His Honour rejected three of the defences. The first was clearly unarguable. The second failed because in his opinion the imputation was not true in substance, and the third, because the contextual imputations pleaded by the respondent were not made by the article in the bulletin, and furthermore, did not differ in substance from the appellant's imputation. His Honour did however uphold the defence of qualified privilege for the reasons that the article raised issues of general interest to persons operating in the field of occupational health and safety, that the imputation was within the privilege to which that interest gave rise, and that malice was not established. His Honour, conscious of the possibility of an appeal, said that he would have assessed damages if the defences had failed, in the sum of $25,000.

     The appeal to the Court of Appeal of New South Wales

219. The appellant appealed to the Court of Appeal of New South Wales (Sheller and Hodgson JJA and Rolfe AJA).  By majority (Rolfe AJA dissenting) that Court found that the inaccurate report of the decision on the original claim was protected because it was relevant to the occasion of qualified privilege.  Their Honours also rejected the appellant's argument that a defence of qualified privilege can never attach to an inaccurate report of court proceedings of which this was said to be an example.

220. Hodgson JA (with whom Sheller JA and Rolfe AJA agreed on this point) held that the report of the decision on the cross-claim in the Federal Court proceedings was published on an occasion of qualified privilege.  This was so because occupational health and safety were matters important for the common convenience and welfare of society, and communications relevant to them to persons responsible for occupational health and safety promoted those ends.  As the respondent had accepted subscriptions for a newsletter dealing with occupational health and safety it was morally and legally obliged to publish to subscribers matters of significance on that topic within which the decision on the cross-claim fell.

221. Hodgson JA also held that unless malice were established, matter communicated on the privileged occasion enjoyed the privilege unless it was "truly unconnected with the subject matter of the occasion."  His Honour further held that it was "germane and reasonably appropriate to the occasion to give readers the context of the proceedings in which the decision relevant to occupational health and safety was made" and that "the part of the publication complained about really [did] no more than ... indicate the nature of the proceedings and the result of the proceedings, so that the part of the judgment relevant to occupational health and safety [was] put in a context."  In addition to agreeing with the decision and reasons of Hodgson JA, Sheller JA said that the matter complained of was "connected and sufficiently connected with the subject matter of the privileged occasion" and "relevant to the occasion" because the paragraphs complained of explained the context in which the copyright claim had been made as a response to an action brought against the claimant in the Federal Court proceedings.  In dissenting, Rolfe AJA would have applied Bellino v Australian Broadcasting Corporation[276] to hold that the imputation found by the jury was not relevant to the privileged occasion:  therefore the inaccurate attribution of the publisher was "truly unconnected with the subject matter of the occasion".  It "intruded material into the article, which was not only wrong, but irrelevant to its essential thrust." 

     [276](1996) 185 CLR 183.

222. As to the appellant's argument that there could be no defence of qualified privilege for an inaccurate report of court proceedings, Hodgson JA said that the necessity for accuracy to sustain a defence of fair report of court proceedings was not an additional requirement superimposed over and above the defence of qualified privilege based upon a reciprocity of duty and interest. 

223. Rolfe AJA would have upheld the appellant's submission in this respect.  In his Honour's opinion, the requirement is that for qualified privilege to apply to reports of court proceedings, the reports must be accurate.  His Honour thought a contrary conclusion to be "somewhat strange, particularly against the background of reciprocal rights and duties to receive and furnish information."

224. Having regard to the decision he had reached on the appellant's appeal, Hodgson JA did not need to deal with the Notice of Contention.  He did, however, express two further opinions:  first, that Davies AJ had not been in error in not finding that the appellant's imputation was true in substance.  In his Honour's opinion:

     "the indirectness of the involvement of the appellant's company in the publication, coupled with the reference to the appellant rather than his company, are sufficient in my opinion to prevent the imputation being true in substance."

225. Secondly, the respondent's defence of contextual truth could not succeed because, whether or not the contextual imputations were conveyed, they were considerably weaker than the appellant's imputation, and could not satisfy the condition for which s 16(2)(c) of the Act provides, that the appellant's imputation not further injure the appellant's reputation.

     The appeal to this Court

226. The appellant's appeal to this Court is brought on three grounds:

     "(a)The Court of Appeal erred in finding that the Respondent was 'morally and legally obliged' and thereby had a duty to publish the matter complained of to the recipients and, thereby, finding that it was published on an occasion of qualified privilege at common law.

     (b)Hodgson JA (with whom Sheller JA agreed) erred in determining that that part of the matter complained of which defamed the [appellant] was relevant to the occasion of qualified privilege which he had found and in doing so misapplied the decision of this Court in Bellino v Australian Broadcasting Corporation[277].

     (c)Hodgson JA (and Sheller JA) erred in determining that the defence of qualified privilege can ever extend to protect an inaccurate report of court proceedings."

     [277](1996) 185 CLR 183.

227. In dealing with the appeal I proceed upon the basis that the article was factually wrong as found by the primary judge, and in my opinion correctly so, in referring to the appellant personally, and not to Consulting by its correct corporate name, and in describing the appellant personally as the, or a publisher of the newsletter the subject of the proceedings in the Federal Court.

228. The first question is whether a defence of qualified privilege is available in respect of the publication of an inaccurate or unfair report of judicial proceedings.

229. That a publication in New South Wales is of a report of court proceedings may not mean that its publisher is confined to the defence of a fair and accurate report of judicial proceedings if other defences are available at common law. Regard has to be had to s 11 of the Act which is in this form:

     "Common law defence etc

     The provision of a defence by this Part does not of itself vitiate, diminish or abrogate any defence or exclusion of liability available apart from this Act."

230. For present purposes I will proceed upon the basis that a report of judicial proceedings may attract qualified privilege.  It is another question however whether the fact that the publication does purport to be a report of judicial proceedings, would be irrelevant to a claim of qualified privilege in respect of it.  It is unfortunate enough for the persons defamed that absolute privilege attaches to judicial, as well as parliamentary proceedings to deny them an effective remedy in defamation in respect of harsh and false things that may be uttered about them in court and Parliament.  Any extension of such a licence, to defame, obviously needs to be carefully scrutinized.  I must say that it does seem anomalous and productive of an incoherence in the law[278], that a report of judicial proceedings, however damaging to a person, may be protected as a fair and accurate report of judicial proceedings if, and only if it is fair and accurate[279], yet if it is inaccurate, or unfair, it might still attract qualified privilege.  As will appear I do not have to resolve in this case the tension to which that anomaly gives rise or indeed, even to decide this first question, whether a separate defence of qualified privilege at common law can coexist with the statutory or common law defences of "fair report".  But it is a matter which may need attention at some stage.  There are two reasons why I do not have to do so.  One is that, on the assumption that the relevant occasion was one of qualified privilege, all of the necessary elements of the defence of it are not present.  The second reason is that, as McHugh J demonstrates in his judgment, the publication the true subject of these proceedings was not made on an occasion of qualified privilege.  It is to the first of these matters that I will now turn.

     [278]See Sullivan v Moody (2001) 207 CLR 562 at 580-581 [54] per Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ. See also Montgomerie v Pauanui Publishing Ltd unreported, New Zealand High Court, 3 March 1997, and on appeal, Pauanui Publishing Ltd v Montgomerie unreported, New Zealand Court of Appeal, 21 October 1997.

     [279]See John Fairfax & Sons Ltd v Hook (1983) 47 ALR 477 at 488, 495.

231. Expressions which have the ring of slogans and metaphors have been repeatedly used in discussions of qualified privilege.  It is important to examine those expressions to reduce them, as far as may be, to concrete terms.  The starting point is that a defence of qualified privilege operates to excuse the publication of inaccurate or untrue and defamatory matter.  But from the earliest times and subsequently according to various formulations, the protection which the law affords has always depended upon a number of matters:  that the statement has been made in the discharge of some public or private duty, whether legal or moral, or in the conduct of the maker's own affairs and in which he or she has a real interest[280].  The formulation that qualified privilege will extend to a communication "fairly warranted by any reasonable occasion or exigency, and honestly made", such communication being "protected for the common convenience and welfare of society" was propounded in Toogood v Spyring[281] and later affirmed in Stuart v Bell[282].  Griffith CJ cited the formulation with approval in Howe & McColough v Lees[283].  The phrase "common convenience and welfare of society" rolls readily off the tongue as if it had a fixed meaning that no one could possibly dispute.  The desirability of the advancement of the common convenience and welfare of society may readily be accepted.  There are bound to be cases however in which what will advance the common convenience and the welfare of society are contestable concepts.  Other expressions, such as "the general interest of society"[284] and "community of interest"[285] similarly involve the making of value judgments.  It is because the making of any wrong statement cannot possibly be for the common, indeed any good, or in the public, or indeed any narrower interest, that the defence, once the occasion has been shown to be one of qualified privilege, focuses upon the subject matter of the communication, rather than upon the actual communication itself, the inaccuracy of which is the reason why there must be some other basis for its justification if its maker is to be protected against suit. 

     [280]cf Toogood v Spyring (1834) 1 CM & R 181 at 193 [149 ER 1044 at 1049-1050]. See also Howe & McColough v Lees (1910) 11 CLR 361 at 368 per Griffith CJ.

     [281](1834) 1 CM & R 181 at 193 [149 ER 1044 at 1049-1050].

     [282][1891] 2 QB 341 at 346 per Lindley LJ.

     [283](1910) 11 CLR 361 at 368.

     [284]Macintosh v Dun (1908) 6 CLR 303 at 305; [1908] AC 390 at 399.

     [285]Howe & McColough v Lees (1910) 11 CLR 361 at 369 per Griffith CJ.

232. The authorities speak of public and private duties, legal or moral.  In truth there are few matters of any kind which in ordinary affairs divorced from business or official functions, one person is under a legal duty to communicate to another or others.  Almost all of the cases on qualified privilege are ones in which the publisher of the statement seeks to rely upon the existence of a moral duty, and necessarily so, because a legal duty is non-existent.  And it is because of the premium which the law places on freedom of speech that the concept of a moral duty has been generously regarded, and allowed to be extended to large commercial publishers, that is to say publishers avid for profit.  That is not to say of course that the intrusion of commerce should in any way be a disqualifying factor.  The reality is that much which is informative and is in the interest of society to learn, would not be communicated at all if it could not be communicated for profit.

233. A further requirement for a defence of qualified privilege is an absence of malice.  That is not a matter which need detain me here because it is not suggested that the relevant publication was published maliciously:  the inaccuracies were not so gross that they could be said to have been made with such a degree of recklessness as could constitute malice.

234. Another requirement for the defence is "community of interest", an expression used by Griffith CJ in Howe & McColough v Lees[286], or, as I would prefer, and much other authority holds, "reciprocity of interest and duty".  Just as the duty must be a duty to make a communication on, and in respect of a particular subject matter, the interest in receiving the communication must be reciprocal and relate to the particular subject matter.

     [286](1910) 11 CLR 361 at 369.

235. Everything to which I have referred highlights the importance of identifying, and doing so with some degree of precision, the relevant subject matter.  It is equally important to make sure that the inaccurate and defamatory matter in respect of which the defence is advanced is not extraneous to that subject matter and is, to adopt the words of each of Sheller and Hodgson JJA respectively in the Court of Appeal in this case which I am content to do, "sufficiently connected" and "germane and reasonably appropriate" to it.  A slight, or general, ill-defined connexion will not suffice.  As North J said in Truth (NZ) Ltd v Holloway[287] in a passage cited with approval by Windeyer J in Australian Consolidated Press Ltd v Uren[288]:

     "[T]here is no principle of law, and certainly no case that we know of, which 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."

     [287][1960] NZLR 69 at 83.

     [288](1966) 117 CLR 185 at 209.

236. To a similar effect is the passage in the joint judgment of Dawson, McHugh and Gummow JJ in Bellino v Australian Broadcasting Corporation[289]:

     "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."

     [289](1996) 185 CLR 183 at 228.

237. Again, what is or is not relevant or germane is not a matter upon which all minds will always agree.  But because the communication of inaccurate matter can hardly be in the true interest of anyone, matters of the most attenuated relevance only to the subject matter, need to be carefully scrutinized and should be rejected as being outside the occasion of qualified privilege.

238. I turn now to the article containing the defamatory matter in which the imputation was made.  It appears in a bulletin which on its masthead makes the claim "The Plain English Guide to Workplace Health & Safety".  The headings to its various articles give the flavour of the publication.  The first article is "Managers to be 'more accountable'".  The next is "Dealing with mental abuse at work".  The third has the heading "Call for City Link OH&S probe".  The fourth article is headed "$350,000 for uninformed worker".  The next heading is "Hire cars go smoke free".  The sixth is "$6.8 million RSI payout overruled".  The next is headed "'Enforced' rest breaks reduce RSI".  The eighth has the heading "NT increases OH&S fines".  The ninth is "New OH&S regulations for Tas".  The tenth has the heading "Emergency management manual".  The next is "Tractor safety campaign".  The twelfth, with which this appeal is concerned, has the heading "MSDS copyright case dismissed".  And the final article is headed "OH&S dates".  Were it not for the twelfth article, the readers would be in no doubt that the exclusive concerns of the bulletin were occupational health and safety.  He or she would also immediately assume that its readership consisted of people interested in, or directly involved in those disciplines.

239. This view would be confirmed by a statement at the end of the bulletin that it is published fortnightly and that "Special Reports are available at $395 for a [sic] 12 months with a 100% money back guarantee".

240. In my opinion the view of Rolfe AJA in dissent in the Court of Appeal should be preferred to the majority's.  Everything which the readers had an interest in knowing and that the respondent had a moral duty to communicate to them consisted of the information about the publication and use of safety data sheets, matters truly of occupational health and safety.  The import of the relevant orders of the Federal Court was that these should be, and were readily accessible, and that their republication was not a breach of copyright.  The other issue in the proceedings in the Federal Court and the way in which it was resolved, were if at all, of only the most peripheral relevance to the accessibility, use and publication of the safety data sheets.  As to those matters, the finding of false and misleading conduct, and its attribution to the appellant, were not germane or sufficiently related.  Reference to the latter was not necessary for an understanding of the relevant matter, or in any way to put it in context.

241. I have so far approached this matter on the basis that the occasion was truly one of qualified privilege.  It was not in fact, as McHugh J holds, such an occasion.  Apart from emphasising that in my view carelessness to the point of recklessness may constitute evidence of malice, I agree with his Honour's reasoning and conclusion.

242. As neither party contended that the trial judge's provisional assessment of damages was inappropriate, I would allow the appeal with costs.  The respondent should also pay the appellant's costs of the trial and the appeal to the Court of Appeal.  Judgment should be entered for the appellant in the sum of $25,000.