Roberts v Bass

HIGH COURT OF AUSTRALIA

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

GEOFFREY MARK ROBERTS & ANOR  APPELLANTS

AND

RODNEY PIERS BASS  RESPONDENT

Roberts v Bass [2002] HCA 57

12 December 2002
A37/2001

ORDER

1.        Appeal allowed with costs.

2.Set aside the orders of the Full Court of the Supreme Court of South Australia dated 8 September 2000 and in place thereof order that:

(a)the appeal to that Court is allowed with costs;

(b)the judgment of the District Court of South Australia dated 24 March 2000 is set aside and in its place:

(i)there be judgment for the second-named appellant, Kenneth Allan Case, with costs; and

(ii)there be a new trial of the action against the first-named appellant, Geoffrey Mark Roberts, the costs of the first trial of the action against Mr Roberts to abide the result of the new trial.

On appeal from the Supreme Court of South Australia

Representation:

S M Littlemore QC with P A Heywood-Smith for the appellants (instructed by David Wilson)

D A Trim QC with N J T Swan and H M Heuzenroeder for the respondent (instructed by Lempriere Abbott McLeod)

Intervener:

R J Meadows QC, Solicitor-General for the State of Western Australia with R M Mitchell intervening on behalf of the Attorney-General for the State of Western Australia (instructed by Crown Solicitor for the State of Western Australia)

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

CATCHWORDS

Roberts v Bass

Defamation – Defences – Qualified privilege – State election – Publication of electoral material – Reciprocity of interest – Proof of malice – Improper motive – Whether intention to cause political damage constitutes an improper motive – Relevance of honest belief in truth of statement – Relevance of reckless indifference to truth or falsity of published material – Relevance of knowledge of falsity of published material – Relationship of common law qualified privilege to extended qualified privilege as identified in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.

Constitutional law (Cth) – Implied limitation upon laws restricting freedom of expression concerning governmental and political matters – Whether constitutional question arises having regard to issues before the State trial and appellate courts – Whether constitutional implication may be disregarded – Whether general common law relating to the occasion of qualified privilege is compatible with the Constitution – Whether general common law relating to malice is compatible with the Constitution – Whether common law needs to be developed to ensure compatibility – Ingredients of malice in the circumstances of the case – Whether malice established in communications published in a State electoral campaign.

Words and phrases – "malice".

1. GLEESON CJ.   The appellants were found at trial to have injured the respondent by the publication of false and defamatory matter in the course of a State election in South Australia, and ordered to pay damages.  The decision of the trial judge was upheld by the Full Court of the Supreme Court of South Australia, save to the extent that the amount of the damages awarded against the first appellant was increased[1].

   [1]Roberts v Bass (2000) 78 SASR 302.

2. The facts are set out in the reasons for judgment of Callinan J.  The issues presented to this Court for decision have been influenced, and in some respects artificially shaped, by the manner in which the cases of the respective parties were conducted in the South Australian courts.  In my view, that produces two consequences.  First, the parties should be held to the cases they presented in the South Australian courts.  Secondly, the present appeals provide an unsuitable occasion for the development of the law, assuming, in the light of the recent decision of this Court in Lange v Australian Broadcasting Corporation[2], that it requires further development.

   [2](1997) 189 CLR 520.

3. The need for the common law to conform to the Constitution is difficult to reconcile with the co-existence of two significantly different tests for qualified privilege in the context of political debate: the first, the test for common law qualified privilege as recognised in Braddock v Bevins[3]; the second, the test formulated by this Court in Lange.  However, the proceedings were conducted in the South Australian courts on that assumption.  The trial judge did not coin the phrase "extended form of qualified privilege".  He took that expression from the joint judgment of seven members of this Court in Lange.  Although that judgment spoke of the "development of the common law"[4], it referred to the common law "categories of qualified privilege"[5], and declared that it should be recognised that those categories should be "extended" to take account of the interest that each member of the Australian community has in discussion about government and political matters[6].

   [3][1948] 1 KB 580.

   [4](1997) 189 CLR 520 at 566.

   [5](1997) 189 CLR 520 at 571.

   [6](1997) 189 CLR 520 at 571.

4. If, as was the common assumption in the present litigation, there is one category of common law privilege relating to communications to thousands of electors in the course of an election, of the kind recognised in Braddock v Bevins, and another category relating to communications to the general public about political matters, of the kind recognised in Lange, then it seems clear that there is a substantial difference between them.  Why this should be so, as a matter of principle, is difficult to understand.  The law of defamation, including the law as to qualified privilege, strikes a balance between competing interests.  Those interests include the public interest in freedom of political debate, which is essential to the functioning of representative democracy.  Why should the balance that applies when a newspaper with a wide circulation publishes an article about the Prime Minister, or the Leader of the Opposition, differ from the balance that applies when someone distributes throughout an electorate a pamphlet urging electors to vote against the sitting member?

5. One difference between what was described in Lange as the extended category of qualified privilege, and the pre-existing category of common law privilege, is that a requirement of reasonableness of conduct applies to the former, but not to the latter.  Because of the way in which the present proceedings were conducted, it will be necessary to return to the subject of malice in relation to the pre-existing category.  Neither irrationality, nor prejudice, constitute or establish malice.  In Lange, it was said that the interest that members of the Australian community have in receiving information on government and political matters would be met sufficiently, in the case of widespread publication which would have failed to attract a common law defence of qualified privilege, by requiring the publisher to prove reasonableness of conduct.  In the case of this "extended defence of qualified privilege in its application to communications with respect to political matters" the defence would also be defeated if the person defamed proves that the publication was actuated by common law malice[7].

   [7](1997) 189 CLR 520 at 574.

6. In the present case, "the extended defence of qualified privilege" was held at trial to have been defeated by want of reasonableness in the conduct of both appellants.  That issue was not pursued in the Full Court.  The tactical reason for that is fairly plain.  Notwithstanding the extensive distribution of the material in question (two of the publications were distributed to more than 12,000 letter boxes), the trial judge found that it was published on what was, at common law, an occasion of qualified privilege.  In the Full Court, the respondent did not challenge that finding.  The test of reasonableness, required for the "extended category", involves an added burden for a defendant.  It suited both appellants to have the case decided on the basis that it was the pre-existing common law category of qualified privilege that was relevant.  They both had findings of malice against them.  Given that there was no challenge to the finding that the publications were made on an occasion of common law qualified privilege in the pre-existing category, if the appellants could displace the findings of malice they would succeed.  If they could not displace the findings of malice, it was, no doubt, regarded as unlikely that they could displace the findings that their conduct was unreasonable.  Thus, the battleground became the original or pre-existing category of common law qualified privilege.  The respondent permitted that, by not challenging the trial judge's finding that the occasion of each publication fell within that category, and the appellants accepted that position, which involved a less onerous test for them.

7. On the assumption, accepted by the parties at trial and in the Full Court, that there remains a category of common law qualified privilege that can apply to publications to electors, even to more than 12,000 electors, which is governed by the law as expounded in Braddock v Bevins, and not Lange, and in the light of the trial judge's unchallenged finding that the publications presently in question were made on an occasion of qualified privilege, the focus of attention became the question of malice, or, as it was described in Lange[8], "common law malice". 

   [8](1997) 189 CLR 520 at 574.

8. The kind of malice that defeats a defence of qualified privilege at common law is bound up with the nature of the occasion that gives rise to the privilege.

9. In Horrocks v Lowe[9], Lord Diplock explained:

   "The public interest that the law should provide an effective means whereby a man can vindicate his reputation against calumny has … to be accommodated to the competing public interest in permitting men to communicate frankly and freely with one another about matters in respect of which the law recognises that they have a duty to perform or an interest to protect in doing so.  What is published in good faith on matters of these kinds is published on a privileged occasion.  It is not actionable even though it be defamatory and turns out to be untrue.  With some exceptions … the privilege is not absolute but qualified.  It is lost if the occasion which gives rise to it is misused.  For in all cases of qualified privilege there is some special reason of public policy why the law accords immunity from suit – the existence of some public or private duty, whether legal or moral, on the part of the maker of the defamatory statement which justifies his communicating it or of some interest of his own which he is entitled to protect by doing so.  If he uses the occasion for some other reason he loses the protection of the privilege."

   [9][1975] AC 135 at 149.

10. The public interest was said to be in communicating "frankly and freely".  His Lordship went on to point out that "express malice" is the term of art by which the law describes the motive of a person who "uses the occasion for some other reason".  He said that, broadly speaking, it means malice in the popular sense of a desire to injure the person who is defamed.  That is clear enough in most of the cases which attract a defence of qualified privilege.  For example, if the privileged occasion is the making by A of a report to B about the character or conduct of C, in pursuance of a duty or interest, then if the dominant motive for the making of a defamatory statement in the report is a desire to injure C, that defeats the privilege.  The occasion has been misused.  In that context, an honest expression of opinion about C's character or conduct is the obverse of a statement made with the dominant motive of injuring C.

11. Such a contrast may not be available when the occasion of privilege is political debate or an electoral contest.  Electors have an interest in receiving information and opinions concerning the merits of candidates for election.  That interest was described by Lord Greene MR, delivering the judgment of the Court of Appeal in Braddock v Bevins[10], as an interest "to have what is honestly believed to be the truth communicated".  The correlative duty was described as a duty to electors "to inform them honestly and without malice of any matters which may properly affect their choice in using their suffrages"[11].  At some points in the argument for the appellants, their embrace of Braddock v Bevins appeared to be less than whole-hearted.  The meaning of the word "honestly" in those statements is clear enough.  It is not to be overlooked.  However, a motive, even a dominant motive, of damaging the electoral prospects of a candidate for election may be perfectly consistent with an honest expression of opinion, or an honest assertion of fact, about the candidate.  Statements made with such a motive are the stuff of which political debate is made.  In such a context, the popular meaning of malice, which Lord Diplock said is "broadly speaking" what it means for the law relating to qualified privilege, requires refinement.  A motive of injuring a candidate by diminishing his or her prospects of election does not constitute malice; that would be repugnant to the very basis of the privilege in electoral contest.

    [10][1948] 1 KB 580 at 591.

    [11][1948] 1 KB 580 at 591.

12. At the same time, a motive of injuring a candidate's prospects of election by damaging his or her reputation is not a defence.  It would be wrong to think that, because such a motive does not constitute malice, it negates malice.  If it were so, electoral contests would for practical purposes constitute a defamation-free zone.  The privilege would be virtually absolute, not qualified.  And "the extended defence of qualified privilege" recognised in Lange, which was held to conform to the requirements of the Australian Constitution, would be but a pale reflection of the common law defence.  The freedom of political speech inherent in the Constitution's concept of representative democracy would be much more limited than the freedom given by the common law in relation to the distribution of material to thousands of voters in an electorate.

13. As the facts of this case show, there is a large middle ground between the publication of political statements to "tens of thousands" contemplated by the judgment in Lange[12] and the limited publications said to be, "more often than not … to a single person"[13], referred to in the same judgment as exemplars of occasions that fall within the pre-existing category of common law qualified privilege. If publication to more than 12,000 voters is an occasion of pre-existing common law privilege, and the privilege is defeated only by malice, with no added test of reasonableness, a conclusion that the freedom of political speech necessitated by the Constitution gives rise to a privilege that can be defeated, not only by malice, but also by want of reasonableness, may appear surprising. Acting (with the reservations earlier expressed) upon the common assumption that there are two categories of qualified privilege in relation to political communications, and that the present cases can and should be decided according to the law that applies to the category that existed before Lange, the test of malice must be whether the matter in question was published for the purpose that was said in Braddock v Bevins to attract the privilege, that is to say, the honest expression of views about a candidate for election.  The fact that such views might be wrong-headed, or prejudiced, or carelessly formed, or even irrational, would not constitute, or demonstrate, malice.  But it would be inconsistent with the purpose of the privilege to use the occasion, not for the honest expression of views, but for the publication of defamatory matter, knowing it to be false, or not caring whether it was true or false.  Recklessness is a word sometimes used to describe the last-mentioned state of mind; but it does not simply mean carelessness, even in a high degree.  It means "indifference to its truth or falsity"[14].

    [12](1997) 189 CLR 520 at 572.

    [13](1997) 189 CLR 520 at 572.

    [14]Horrocks v Lowe [1975] AC 135 at 153.

14. As Braddock v Bevins makes clear, when, in the course of an election contest, political views damaging to the reputation of a candidate, deliberately intended to harm his or her prospects of election, are published, what attracts the qualified privilege is interest in the honest expression of views, no matter how strongly put, and no matter how unreasonable they may be.  The purpose of the privilege is not to protect dishonesty, or to permit the communication of anything that is represented to be a view, whether or not it is in fact genuinely held.  A statement made in the course of political debate in an election campaign does not become honest merely because it serves a purpose of damaging the reputation, and therefore the electoral prospects, of a candidate.  The genuineness of a belief that it is in the public interest that a candidate should be defeated does not cast a mantle of honesty over anything and everything that may be said in order to achieve that objective.  The end does not justify any means.  A strongly held opinion that a member of Parliament should be voted out of office does not mean that anything said about the member with the object of persuading electors to a like opinion must be treated as honest, and that the use of the privileged occasion is necessarily proper.

15. It is evident, from parts of the reasoning of the trial judge and the Full Court, that it was argued on behalf of the appellants that it did not suffice to establish malice merely to show that they did not have a positive belief in the truth of the allegations of impropriety levelled at the respondent.  As will appear, in the case of the first appellant, that argument was beside the point, and, in the case of the second appellant, the issue was not determinative of the outcome.  It may be observed that mere absence of positive belief in the truth of what is published, if that be all there is to it, does not establish malice.  However, lack of positive belief in the truth of a statement is a description that might be applied to different states of mind.  Whether lack of belief is evidence of reckless indifference to truth or falsity, may depend upon the nature of what is said, and the occasion on which it is said.  It may be, for example, that if a person publishes an allegation of serious impropriety or unfitness about another, in circumstances where community standards would recognise a moral obligation to make an attempt to ascertain the truth beforehand, and the person has no idea whether the allegation is true or false, it is open to conclude that the person is recklessly indifferent to the truth or falsity of the allegation, within the meaning of what was said in Horrocks v Lowe.  That is a question of fact.  But mere absence of a positive belief in the truth of what is said does not constitute malice.  As I have indicated, in my view, having regard to the evidence and the findings of fact, this is not an issue that arises in relation to the appeal of the first appellant, but it is of some relevance to the appeal of the second appellant.

16. That is the background against which the findings of fact made in the South Australian courts must be examined.  It is important, in that respect, to note the findings of the trial judge as to the defamatory imputations conveyed by the matter complained of, which were accepted in the Full Court, and are not the subject of the appeals to this Court.

17. In the case of the "Nauru Postcard", the trial judge said:

    "In my opinion, the ordinary and reasonable reader would interpret that postcard as meaning that:

    (i)Their elected member was, at the expense of the taxpayer, enjoying a holiday;

    (ii)The plaintiff's holiday at Nauru was for his own enjoyment, and not in the proper pursuit of his duties as a member of the seat of Florey;

    (iii)The 'Clean Government Coalition' was a group whose aim was to ensure proper parliamentary behaviour and in this case the actions of the local member were not proper; and

    (iv)the opening words 'This is the postcard your politician Sam Bass should have sent you …' [refer] to a course of action which the plaintiff, as their member, should have followed but deliberately refrained from doing so.

    In summary it is an effective document implying that the elected member had embarked on a holiday at a paradise resort and in doing so had misused taxpayers' money and this fact was discovered by an organisation involved in 'Clean Government'.  The publication was clearly aimed at disparaging the plaintiff's reputation, the aim being to lower the plaintiff in the estimation of his fellow constituents.

    I therefore find that the words reflect on the integrity of the plaintiff and portray him as a member of parliament who has misused public moneys for his own personal benefit to the detriment of his constituents and, as such, are defamatory of the plaintiff."

18. The trial judge described the "Free Travel Times Pamphlet" as "an inflammatory document which clearly reflected on the integrity of the plaintiff … and contained [a] forged purported copy of his Frequent Flyer Activity Statement".  As to the frontispiece, he said the reasonable and ordinary reader would take it that the respondent had been on holiday in Nauru at government expense and was the most travelled parliamentarian for the year and that, rather than attending to his electoral duties, he was content to lie in the sun in Nauru eating and drinking.  The second page contained the forged mock-up of a frequent flyer points statement.  The respondent had never been involved in a frequent flyer programme.  As to the third page, it was held that the ordinary and reasonable reader would take it to mean that the respondent, in an underhanded way, had used his position as a member of Parliament to accrue frequent flyer points for his own use and for the use of members of his family.  The final page portrayed the respondent as among the politicians who had blatantly misused parliamentary entitlements. 

19. In the case of the "Orange Pamphlet" (which was the only publication in which the second appellant was involved) the trial judge found that it conveyed the following imputations:

    "(a)That the plaintiff had spent $32,000.00 of taxpayers' money on overseas travel.

    (b)That the plaintiff had spent $32,000.00 of taxpayers' money for overseas travel for the purpose of his own enjoyment and not for the proper purpose of such travel, namely to enhance the plaintiff's knowledge of issues relevant to the better performance of his role as a member of Parliament.

    (c)That the plaintiff had taken numerous overseas trips for his own benefit and enjoyment at the taxpayers' expense.

    (d)That the plaintiff had taken numerous overseas trips for his own benefit and enjoyment and not for the intended purpose of such trips, namely to enable him to better serve the interests of the Parliament of South Australia and the members of this electorate.

    (e)Contrary to his responsibility as the member of Parliament for Florey failed to take appropriate steps to prevent clandestine arrangements being put in place in respect of the management of the Modbury Hospital, contrary to the interests of the members of the electorate of Florey and the public of South Australia generally.

    (f)That the plaintiff had put the rights of those interested in the right to possess and utilise guns ahead of the safety of members of ordinary families.

    (g)That the plaintiff had not spent sufficient time in his electorate to properly discharge his duties as the member of the seat of Florey.

    (h)That the plaintiff was not spending sufficient time in the electorate of Florey to enable him to adequately fulfil his duties as the member for Florey.

    (i)That if the plaintiff was elected to the member of Florey and then subsequently elected as Speaker of the House of Assembly then he would spend less time than the time that he was currently spending in the electorate."

20. The publication of the "Free Travel Times Pamphlet" attracted the intervention of the Electoral Commissioner, and ultimately the first appellant pleaded guilty to electoral offences in relation to it.

21. The trial judge found that the respondent was a man of the utmost integrity; that he adopted a highly ethical approach to his parliamentary activities; that he had not misused his travel or other entitlements; that his attendance at the Nauru conference was for parliamentary purposes; that there was no basis for any criticism of his travel; that he was not a member of any frequent flyer scheme; and that his conduct in relation to the Modbury Hospital and firearms control provided no basis for criticism. 

22. It is necessary to consider separately the appeal of each appellant.

    The first appellant

23. The damages awarded against the first appellant, Mr Roberts, by the Full Court were $100,000.  That was made up of $20,000 for the first publication, $35,000 for the second, and $45,000 for the third.  The fact that the third publication, and to a substantial extent the second publication, occurred after, and notwithstanding, the intervention of the Electoral Commissioner was regarded as an aggravating factor. 

24. As Martin J pointed out in the Full Court, the first appellant had, over a period of some months, engaged in a course of conduct that demonstrated ill-will towards the respondent. 

25. The tone of the first appellant's attack on the respondent was set by his identifying himself, in the first of the presently relevant publications, as the representative of a so-called "Clean Government Coalition".  The implications of a representation that the respondent had become the target of a group of campaigners for "clean government" were obvious, and coloured the accompanying material.  This is reflected in the trial judge's finding as to the imputations.

26. The trial judge made the following finding about the conduct of Mr Roberts, and the light thrown upon his behaviour by what occurred after the intervention of the Electoral Commissioner:

    "One would consider bearing in mind the views of the Electoral Commissioner that he would take some care in the preparation of further material to be publicly circulated.  However, his actions thereafter show almost a contempt about these matters.  Mr Roberts continued with the preparation and circulation of approximately 12,650 election day handouts referring to 'numerous junkets at your expense including trips to the United Kingdom and Nauru', and, if elected 'Qualify to spend another $32,000 of taxpayers' money on overseas travel'.  This is the action of a person whose aim is solely to remove Mr Bass from office in total ignorance of the true factual matters, or, for that matter having no care or concern whether the matters were true or false providing his aim was achieved."

27. Later, the trial judge said: 

    "The evidence does, in my opinion, establish that [the appellants] published the defamatory material without 'considering or caring whether it be true or not'.  On occasions during his evidence, [the first appellant] admitted to having prepared the publications in spite of his indifference to the truth of their content …

    …

    Evidence of [the first appellant's] conduct on other occasions may also be used to infer that the material was published for some improper motive …  This is of particular significance in assessing the conduct of [the first appellant].  From the initial publication his actions were reckless without any enquiry as to the accuracy or otherwise of the published material.  His failure to take any positive steps to stop the FTT pamphlet from being distributed or in any way concern himself with a retraction notwithstanding repeated requests from the Electoral Commissioner to do so, and his subsequent actions in preparing and distributing the election morning pamphlet, establishes, in my view, his malicious conduct."

28. In the Full Court, Prior J said that the first appellant "was properly identified as a person with an improper motive and no honest belief in the truth of what he published".  As the passages quoted above show, if all that Prior J meant by that observation was that the first appellant did not have a positive belief in the truth of what he published, then the trial judge's findings went much further than that.  Indeed, the evidence showed that part of what the first appellant published was actually fabricated by him.  It may be doubted that Prior J intended such a limited meaning.  The sentence was followed by a footnote reference to two cases, one of which was Horrocks v Lowe.  The page references to that judgment include the passage earlier cited in these reasons, and they also include a passage in which Lord Diplock stated that recklessness meant indifference to truth or falsity, and was not to be equated with carelessness.

29. Williams J recorded that "[i]t was common ground between the parties that the publications took place on privileged occasions".  He set out the findings of the trial judge, which I have already quoted, and said that, in his opinion, they were adequately supported by the evidence.  He also noted the trial judge's finding that the first appellant published the defamatory matter without considering or caring whether it be true or not.  He agreed with that finding.  In that connection he referred to the first appellant's persistence in his conduct after a time when, whatever might have been the position earlier, he had been told that his allegations of impropriety lacked foundation. 

30. Williams J cited the judgment of Hunt J in Barbaro v Amalgamated Television Services Pty Ltd[15], which, in turn, referred to Horrocks v Lowe.  Relying on what had been said by Hunt J, Williams J rejected an argument advanced on behalf of the first appellant that a mere absence of honest belief in the truth of a published statement did not establish malice.  It should be noted, however, that the findings of the trial judge, adopted by Williams J, went beyond a finding merely that the first appellant had no belief in the truth of what he published.

    [15](1985) 1 NSWLR 30 at 50-51.

31. Martin J agreed that the first appellant "did not possess an honest belief in the truth of the published statements", and he also agreed with the trial judge that the first appellant acted with an improper motive.  In explaining his reasons, he quoted what Lord Diplock said in Horrocks v Lowe.  In the course of the quotation he emphasised the following statement[16]:

    "If [a defendant] publishes untrue defamatory matter recklessly, without considering or caring whether it be true or not, he is in this, as in other branches of the law, treated as if he knew it to be false.  But indifference to the truth of what he publishes is not to be equated with carelessness, impulsiveness or irrationality in arriving at a positive belief that it is true."

    [16]Horrocks v Lowe [1975] AC 135 at 150.

32. The findings made by the trial judge, and accepted by the Full Court, concerning the first appellant, which were amply supported by the evidence, clearly established malice.  It is true that there are passages in the reasoning of the trial judge, and the members of the Full Court, probably influenced by what Hunt J said in Barbaro, which reflect a view that it would have been sufficient to constitute malice if all that appeared was that the first appellant lacked belief in the truth of what he published.  To an extent, those passages appear to have been made by way of response to the argument of counsel for the appellant; but that argument was beside the point.  It completely underestimated the factual strength of the case against the first appellant.  He did not merely lack belief in the truth of what he published.  He actually concocted some of it himself; and he was found to have been recklessly indifferent to the truth or falsity of the accusations of impropriety he levelled at the respondent.

33. On the concurrent findings of fact made against the first appellant, which have not been shown to be in error, a conclusion of malice was virtually inevitable.

    The second appellant

34. The position in relation to the second appellant, Mr Case, is more difficult.  The damages awarded against him were $5,000. 

35. He was one of a group of people who decided to "target" the respondent and seek to secure his electoral defeat because of their opposition to the privatisation of the Modbury Hospital, and their perception that the respondent supported privatisation.  The second appellant's views on that subject were described by the trial judge as "passionate".  There is nothing wrong with that.  The judge also thought the group's opinion of the role of the respondent in relation to moves to privatise the hospital was unfair.  So are many political opinions.

36. The second appellant, who was described as "intelligent and capable", had a limited involvement in the publications.  He had nothing to do with the first two.  As to the third, he turned up on election day at a polling booth to which he had earlier been allocated, planning to assist the respondent's political opponents.  He was given copies of the third publication, the orange pamphlet, which he proceeded to distribute.  His evidence was that there was nothing in the pamphlet that struck him as a cause for concern.  Apart from what it said about the Modbury Hospital, which was the subject of particular interest to him, he had no knowledge of the matters alleged against the respondent, but was content to distribute the card as campaign material. 

37. The trial judge found that the views of the second appellant were so strong "that he would adopt any means to achieve the aims of his group of removing Mr Bass from office".  That can hardly have been meant to be taken literally.  The judge also found that the second appellant published the defamatory material (that is to say, handed out the orange pamphlet) without considering or caring whether it be true or not.  That finding was made in conjunction with the same finding against the first appellant, and was elaborated by reference to facts which related to the first appellant.  Both appellants had common legal representation, and in a number of places in the judgment they are treated as being in much the same position.  It is important not to allow the second appellant to be caught in the undertow of the powerful case against the first appellant.

38. In dealing with the Lange issue of reasonableness, the trial judge made a finding which appears also to have influenced his conclusion on malice.  He criticised the second appellant for not making enquiries as to the truth of adverse material in the orange pamphlet, apart, of course, from the subject in which he was personally interested, that is to say, the Modbury Hospital.  The first appellant actually knew of the falsity of some of that material, and was found to have been recklessly indifferent to the truth of the rest.  As to the second appellant, the trial judge said:

    "Mr Case's whole rationale of his actions and view of the conduct of the plaintiff was totally flawed and governed mainly by the aim of 'targeting' the plaintiff.  He made no enquiries but proceeded to hand out the … pamphlet not caring whether the stated matters were true or false."

39. Two observations may be made.  First, "targeting" an election candidate is not improper.  It is part of legitimate political struggle.  Whether or not it goes beyond what is legitimate may depend on the methods employed.  Secondly, the fact that a worker at a polling booth makes no enquiries about the truth of the contents of electoral propaganda does not necessarily indicate reckless indifference to the truth or falsity of the contents of the propaganda.  It depends on the circumstances.  If, for example, a worker at a polling booth is asked to distribute a pamphlet accusing a candidate of a serious crime, then failure to make further enquiries might well indicate indifference to the truth or falsity of the accusation.  The allegations in the orange pamphlet are not in that category, and what they meant to the first appellant was very different from what they would be likely to have meant to the second appellant.

40. In the Full Court, Prior J, who said he agreed with both the other members of the Court, did not deal separately with the issue of malice in relation to the second appellant. 

41. Williams J rightly rejected the idea that "targeting" the respondent was itself an improper purpose.  He referred to the trial judge's finding that both appellants acted without considering or caring whether the published material was true or false.  However, as has been noted, in this respect the facts relating to the second appellant were materially different from those relating to the first appellant, and the differences were not examined.

42. Martin J, on the other hand, made detailed reference to the different position of the second appellant.  He said that, after anxious consideration, he concluded that the trial judge erred in finding that the second appellant possessed a dominant motive to injure the respondent.  He then went on to consider whether the judge was correct in finding that the defence of qualified privilege also failed because Mr Case did not possess an honest belief in the statements or because he published the untrue defamatory matter "recklessly, without considering or caring whether it be true or not".  He referred to Lord Diplock's warning that, in this context, recklessness does not mean mere carelessness.  As to the first of the two alternatives, Martin J doubted that the evidence justified a finding that the second appellant did not possess the belief he claimed, which was that he looked at the card and thought it sounded right.  However, he found it unnecessary to decide the issue.  He said that the conclusion that the second appellant was "indifferent within the meaning of the test posed by Lord Diplock" was reasonably open.  On that basis, he dismissed the appeal of the second appellant. 

43. Thus, two members of the Full Court, (Williams J, with whom Prior J agreed), upheld the finding of malice against the second appellant on the basis of an acceptance of the trial judge's finding that he was recklessly indifferent to the truth or falsity of what he published.

44. In so far as the finding of malice rested on the trial judge's finding that the second appellant was recklessly indifferent to the truth or falsity of what he published, it was legally orthodox.  However, the reasoning in support of the primary finding is open to criticism.  First, it insufficiently distinguished the positions of the two appellants.  Secondly, and more particularly, it made insufficient allowance for the practical position of a person who undertakes to distribute electoral propaganda at a polling booth on election day, and who ordinarily would not be expected to have the capacity to verify the accuracy of such propaganda.  Thirdly, it appears to have been affected by an erroneous view that "targeting" a candidate is itself improper.  Martin J, in reviewing the trial judge's decision, correctly rejected that approach, but did not appear to examine the way in which it affected the finding of indifference, which he upheld.

45. In my view, the evidence did not support the finding that the second appellant was recklessly indifferent to the truth or falsity of what he published.  In the circumstances of the case, which include the nature of the activity in which he was engaged, and the contents of the orange pamphlet as they would reasonably have appeared to him, failure to make enquiries about the material other than that concerning the Modbury Hospital was not evidence of reckless indifference, and the mere fact that the second appellant did not have a positive belief in the truth of that material was therefore not evidence of malice.

    Conclusion

46. The first appellant's appeal should be dismissed with costs.

47. The second appellant's appeal should be allowed with costs.  The orders of the Full Court of the Supreme Court of South Australia should be set aside.  It should be ordered that the second appellant's appeal to that Court be allowed with costs, that the orders against the second appellant made by the trial judge be set aside, and that there should be judgment for the second appellant in the action.  The respondent should pay the costs of the second appellant of the trial, the appeal to the Full Court, and the appeal in this Court.

48. GAUDRON, McHUGH and GUMMOW JJ.   By grant of special leave, Geoffrey Roberts and Kenneth Case appeal against an order of the Full Court of the Supreme Court of South Australia[17] dismissing their appeal against an award of damages for defamation made by the District Court of South Australia.  The respondent, Rodney Bass, sued Roberts for defaming him in three publications issued during the course of an election campaign for the State seat of Florey in South Australia.  Bass sued Case for defaming him in the third of these publications.  The common law, and not South Australian statute law, provided the principles of defamation law applied by the District Court.  When the publications were made, Bass was the Member for Florey and Roberts was an elector in that electorate and Case was an elector in the adjoining electorate.  Roberts and Case were opposed to Bass being re-elected.

    [17]Roberts and Case v Bass (2000) 78 SASR 302.

49. The principal issues in the appeal are whether the evidence justified various findings made by the trial judge and the members of the Full Court and, if so, whether they constituted malice for the purpose of the law of qualified privilege in the context of publications in an electoral contest.  There is also an issue as to whether the parties can depart from the positions that they adopted in the Full Court on the question whether the publications were made on occasions of qualified privilege.  In the Full Court, Bass did not appeal against the trial judge's finding that the occasions were privileged.  In this Court he contends that the occasions were not privileged.  In the Full Court, Roberts did not appeal, and Case did not press his appeal, against the trial judge's findings that the publications were not protected by the extended defence of qualified privilege recognised by this Court in Lange v Australian Broadcasting Corporation[18].  They now wish to rely on the extended defence of qualified privilege.

    [18](1997) 189 CLR 520.

    Proceedings in the District Court

50. In the District Court, Lowrie DCJ held that all three publications contained imputations that were defamatory of Bass.  The first defamation was contained in a mock postcard – "the Nauru postcard" – that Roberts sent to all the households in the electorate.  The trial judge found that words on the postcard reflected on the integrity of Bass and portrayed "him as a member of parliament who has misused public moneys for his own personal benefit to the detriment of his constituents".

51. The second defamation was contained in an election pamphlet that Roberts also sent to all households in the electorate – "the Free Travel Times pamphlet" – a document that purported to show a copy of Bass' Frequent Flyer Activity Statement with Ansett Airlines.  Lowrie DCJ found that the Frequent Flyer Activity Statement was a forgery and that the pamphlet had a number of defamatory meanings.  They included:

    .that Bass, while attending a resort in Nauru, was neglecting his responsibilities to his constituents;

    .that he had taken advantage of his position as a Member of Parliament to obtain a free holiday for his own purposes;

    .that on numerous occasions he had used his position as a Member of Parliament to accrue Frequent Flyer Points for his own and for his family's use and benefit; and

    .that he had taken overseas trips in the course of his parliamentary duties that were not taken in the interests of his constituents.

52. The third defamation was contained in a "How to Vote Card" – "the Orange pamphlet" – that was distributed at polling booths on election day.  Roberts prepared the Orange pamphlet, and Case was one of those who distributed it on polling day.  The trial judge found that it had the nine meanings alleged in the plaintiff's Statement of Claim.  They included:

    .that Bass had spent $32,000 of taxpayers' money for overseas travel for the purpose of his own enjoyment and not for the proper purpose of such travel;

    .that he had taken numerous overseas trips for his own benefit and enjoyment at the taxpayers' expense;

    .that, contrary to his responsibility as the Member for his electorate, he had failed to take appropriate steps to prevent clandestine arrangements being put in place in respect of the management of a hospital contrary to the interests of the electorate;

    .that he had put the rights of those interested in possessing and using guns ahead of the safety of members of ordinary families;

    .that he had not spent sufficient time in his electorate to properly discharge his duties as the Member for Florey; and

    .that, if he was elected and subsequently elected as Speaker of the House of Assembly, he would spend less time than the time that he was currently spending in the electorate.

53. Lowrie DCJ found that, in publishing the documents, the main intention of Roberts and Case "was to injure [Bass] and to lower his estimation in his fellow persons by making them think less of him".  His Honour found that various factors pointed "to a conclusive finding that the defendants intended to injure [Bass]".  The learned trial judge also said:

    "The evidence does, in my opinion, establish that the defendants published the defamatory material without 'considering or caring whether it be true or not'."

54. His Honour said:

    "In summary, [Bass] submitted, and I have accepted, that the conduct of [Roberts] was tantamount to using any area of apparent criticism of [Bass] to injure his reputation and cause him to lose office.  This purpose is not a proper motive.  Furthermore, I am also of the view that [Case's] actions in the distribution of the [Orange] pamphlet on the day of the election was motivated by actual malice.  The actions of [Case] were not as recklessly blatant as that of [Roberts]."

55. Lowrie DCJ said that Case's "dominant motive was to injure [Bass'] reputation and remove him from office and, as such, it was an improper motive".  His Honour viewed the conduct of Case as malicious.

    Appeal to the Full Court

56. The Full Court (Prior, Williams and Martin JJ) upheld the verdicts in favour of Bass.  In doing so, the Full Court also upheld the findings of malice against Roberts and Case, although their Honours' reasoning for making those findings differed.  Prior J said (footnote omitted)[19]:

    "It is plain from the findings made by the trial judge that neither appellant had an honest belief in the truth of what was published.  Case was properly found to be recklessly indifferent to the truth or falsity of the material he published.  Roberts was properly identified as a person with an improper motive and no honest belief in the truth of what he published."

    [19]Roberts and Case v Bass (2000) 78 SASR 302 at 304-305 [2].

57. Williams J set out[20] various findings of the trial judge concerning malice.  They included the finding that Roberts "could not possibly have believed the imputations to be true".  They also included the finding that Case's whole rationale was "governed mainly by the aim of 'targetting' [Bass]" and that he had handed out the Orange pamphlet "not caring whether the stated matters were true or false".

    [20]Roberts and Case v Bass (2000) 78 SASR 302 at 314 [32].

58. Williams J then said[21]:

    "These are strong findings; in my opinion they are adequately supported by the evidence.  Roberts was told that his allegations lacked foundation some eight days before polling day, but he persisted with the thrust of his allegations of impropriety.  Case acknowledged that the plaintiff had been selected because he was a 'soft target'.  He could not provide any basis for a belief in the allegations.  I reject the submission made on the part of the appellants that they should be treated as having honest beliefs in the relevant respect."

    [21]Roberts and Case v Bass (2000) 78 SASR 302 at 314 [33].

59. Williams J also rejected the appellants' submission "insofar as it would imply that, in the present circumstances, a defence of qualified privilege can be available in the absence of the defendant's honest belief in the truth of the published statement"[22].  His Honour said, however, that upon the evidence he was "unable to identify any improper purpose attaching to the actions of either defendant and in this respect I would disagree with the conclusion of the trial judge"[23].  Williams J said[24] that the facts were "consistent with the defendants becoming over-enthusiastic in the support of their electoral cause".  His Honour said that the appellants did "not appear to have any special desire to hurt the plaintiff otherwise than in terms of his prospects of re-election".

    [22]Roberts and Case v Bass (2000) 78 SASR 302 at 316 [41].

    [23]Roberts and Case v Bass (2000) 78 SASR 302 at 316 [43].

    [24]Roberts and Case v Bass (2000) 78 SASR 302 at 316 [44].

60. Martin J said[25] that "the evidence was sufficient to justify the conclusion reached by the learned trial judge that Mr Roberts possessed a dominant motive to injure the plaintiff".  His Honour said that the evidence also justified the finding that Roberts had "engaged in a course of conduct over some months which was demonstrative of his ill-will toward the plaintiff".  Although Martin J found that the primary concern of Case was to achieve the defeat of the plaintiff at the election, his Honour held that such a purpose "does not amount to malice that would defeat a claim of qualified privilege"[26].  Martin J also held "that the learned trial judge erred in concluding that Mr Case possessed a dominant motive to injure the plaintiff"[27].  Nevertheless, his Honour found that Case's defence of qualified privilege failed because he "did not possess an honest belief in the statements or because he published the untrue defamatory matter recklessly, without considering or caring whether it be true or not"[28].

    [25]Roberts and Case v Bass (2000) 78 SASR 302 at 325-326 [82].

    [26]Roberts and Case v Bass (2000) 78 SASR 302 at 335 [95].

    [27]Roberts and Case v Bass (2000) 78 SASR 302 at 336 [100].

    [28]Roberts and Case v Bass (2000) 78 SASR 302 at 336 [100].

61. Martin J said[29] that Case had claimed that the Orange pamphlet accorded with his views and knowledge, that he had looked at it and that he thought that it sounded right.  However, his Honour said Case did not claim to believe that Bass had previously spent $32,000 of taxpayers' money on overseas travel.  Case had placed a different interpretation upon a statement in the Orange pamphlet concerning the spending of $32,000.  He had denied that the statement meant that Bass had previously spent $32,000 on overseas travel.  In his view, it meant that Bass had previously been qualified to spend that amount on travel and, if elected, he would again qualify to spend the same amount on travel during the period of his tenure.  Martin J said that, in the view of the trial judge and all members of the Full Court, Case's interpretation was incorrect.  Accordingly, Case did not claim to believe in the truth of the statement as interpreted by the trial judge and the Full Court and was guilty of malice.

    [29]Roberts and Case v Bass (2000) 78 SASR 302 at 337 [102].

    Qualified privilege

62. The common law protects a defamatory statement made on an occasion where one person has a duty or interest to make the statement and the recipient of the statement has a corresponding duty or interest to receive it[30].  Communications made on such occasions are privileged because their making promotes the welfare of society[31].  But the privilege is qualified – hence the name qualified privilege – by the condition that the occasion must not be used for some purpose or motive foreign to the duty or interest that protects the making of the statement.

    [30]Adam v Ward [1917] AC 309 at 334 per Lord Atkinson.

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

63. The learned trial judge found the occasion of each publication was privileged.  In doing so, he applied the principles underlying the statement of the English Court of Appeal[32] "that statements contained in the election address of one candidate concerning the opposing candidate, provided they are relevant to the matters which the electors will have to consider in deciding which way they will cast their votes, are entitled to the protection of qualified privilege".  However, his Honour held that the publications were not protected by the extended defence of qualified privilege recognised by this Court in Lange[33]. The learned trial judge did so because he found the conduct of Roberts and Case in publishing the defamatory matter was not reasonable.  

    [32]Braddock v Bevins [1948] 1 KB 580 at 590-591.

    [33](1997) 189 CLR 520.

    Freedom of communication and the Constitution

64. In Lange, the Court unanimously held that freedom of communication on matters of government and politics is an indispensable incident of the system of representative government created by the Constitution[34].  The Court emphasised[35] that "[c]ommunications concerning political or government matters between the electors and the elected representatives, between the electors and the candidates for election and between the electors themselves were central to the system of representative government, as it was understood at federation".  Hence, this litigation is concerned with matters at the heart of the constitutional freedom of communication respecting political or government matters. 

    [34](1997) 189 CLR 520 at 559.

    [35](1997) 189 CLR 520 at 560.

65. In Lange, the Court pointed out[36] that, although the constitutional freedom confers no rights on individuals, it invalidates any statutory rule that is inconsistent with the freedom. It also requires that the rules of the common law conform with the Constitution, for "the common law in Australia cannot run counter to constitutional imperatives"[37].  It is necessary therefore to determine the extent to which, if at all, the common law rules concerning the traditional defence of qualified privilege applicable in this case are consistent with the constitutional freedom of communication.

    [36](1997) 189 CLR 520 at 560.

    [37](1997) 189 CLR 520 at 566.

66. In determining whether a rule of the common law is consistent with the constitutional freedom of communication, two questions have to be answered[38].  First, does the rule effectively burden the freedom?  Second, if so, is the rule reasonably appropriate and adapted to serve a legitimate end compatible with the constitutionally prescribed system of representative and responsible government?  If the answer to the second question is "no", the common law rule must yield to the constitutional norm, for the common law's impact on the freedom cannot be greater than that permitted by the constitutional norm.

    [38](1997) 189 CLR 520 at 567.

67. In Lange, the Court held that the law of defamation effectively burdened the constitutional freedom[39] and that the law of qualified privilege, as traditionally understood, did not qualify that burden in a way that was consistent with the freedom in respect of governmental and political matters published to the general public.  The publication complained of in Lange concerned a television programme broadcast across Australia.  Under the common law as previously understood, the law of qualified privilege did not generally recognise an interest or duty to publish defamatory matter to the general public[40].  Hence, without that privilege, the common law imposed an unreasonable restraint upon the constitutional freedom[41].  That necessitated the development of the common law as expounded in the balance of the judgment of the Court.

    [39](1997) 189 CLR 520 at 568.

    [40](1997) 189 CLR 520 at 570. It might do so in exceptional circumstances: Adam v Ward [1917] AC 309; Loveday v Sun Newspapers Ltd (1938) 59 CLR 503.

    [41](1997) 189 CLR 520 at 571.

68. Three points in particular should be noted concerning the development of the defence of qualified privilege in Lange.  First, in extending the law of qualified privilege to protect publications concerning governmental and political matters to mass audiences, the Court imposed as a condition of the extended privilege that the publisher's conduct be reasonable.  But the Court emphasised[42]:

    "reasonableness of conduct is imported as an element only when the extended category of qualified privilege is invoked to protect a publication that would otherwise be held to have been made to too wide an audience.  For example, reasonableness of conduct is not an element of that qualified privilege which protects a member of the public who makes a complaint to a Minister concerning the administration of his or her department.  Reasonableness of conduct is an element for the judge to consider only when a publication concerning a government or political matter is made in circumstances that, under the English common law, would have failed to attract a defence of qualified privilege."

    Second, in Lange[43], the Court held that, having regard to the subject matters of government and politics, the motive of causing political damage to the plaintiff or his or her party is not an improper motive that would destroy a defence of qualified privilege.  The Court also held that the vigour of an attack or the pungency of a defamatory statement concerning such matters cannot, without more, discharge the plaintiff's onus on the issue of malice.  Third, in some respects the Court's development of the law of qualified privilege extended beyond what was required for conformity with the constitutional norm[44]. 

    [42](1997) 189 CLR 520 at 573. The reference to the English common law is to that inherited in Australia and understood aside from the requirements of the constitutional norm: cf Reynolds v Times Newspapers Ltd [2001] 2 AC 127 at 221 per Lord Cooke of Thorndon.

    [43](1997) 189 CLR 520 at 574.

    [44](1997) 189 CLR 520 at 571.

69. The present case concerns publications relating to the record and policies of a candidate for election to State Parliament for the seat of Florey.  They were directed to, and generally received by, a limited class of persons - the electors in the seat of Florey.  As will appear, the traditional common law defence of qualified privilege protects such publications because the reciprocity of interest required for the traditional defence is present.  As will also appear, given the decision in Lange, that privilege will not be lost because the publisher intends to cause political damage to the candidate or his or her party.  Nor will the privilege be lost merely because of the vigour of an attack on a candidate for election to Parliament that is contained in a defamatory statement concerning the record and policies of the candidate.  Without more, the vigour of the attack is not evidence of improper motive.  As pointed out below, the privilege will be lost only if it is used for a purpose other than that for which it is granted - in this case, the communicating of information, arguments, facts and opinions concerning Bass and his policies to the electors of Florey.  Thus, although the common law rules of defamation make defamatory statements concerning a candidate for election actionable and impose a burden on an elector's freedom of communication, those rules also protect an elector who uses the occasion for the purpose that gives rise to the constitutional freedom.  Hence the burden does not affect what is required to give effect to the constitutional freedom.

70. Accordingly, the second of the two questions posed in Lange is answered by saying that, in the present case, the common law rules governing traditional qualified privilege are reasonably appropriate and adapted to serve a legitimate end compatible with the constitutionally prescribed system of representative and responsible government.

71. As we have indicated, Bass did not appeal against the trial judge's finding that the occasions were privileged.  And Roberts did not appeal, and Case did not press his appeal, against the trial judge's findings that the defence of extended qualified privilege did not protect the publications.  All parties now wish to depart from the positions that they adopted in the Full Court.  In our view, having conducted their cases in the manner that they did in the Full Court, they should not be allowed to depart from the courses they then adopted.

72. Moreover, the holding of the parties to their cases does not cause any injustice to any of the parties.  At all stages, including in this Court, it has been assumed that the decision in Braddock v Bevins[45] gives effect to the common law of Australia. That assumption was correctly made. In any event, if that decision was contrary to the common law of this country, the common law rules would have to be amended to conform to the Constitution.

    [45][1948] 1 KB 580 at 590-591.

73. It is a serious mistake to think that Lange exhaustively defined the constitutional freedom's impact on the law of defamation.  Lange dealt with publications to the general public by the general media concerning "government and political matters". It was not concerned with statements made by electors or candidates or those working for a candidate, during an election, to electors in a State electorate, concerning the record and suitability of a candidate for election to a State Parliament. Such statements are at the heart of the freedom of communication protected by the Constitution. They are published to a comparatively small audience, most of whom have an immediate and direct interest in receiving information, arguments, facts and opinions concerning the candidates and their policies. In that context and constitutional framework, the application of traditional qualified privilege requires a holding that qualified privilege attaches to statements by electors, candidates and their helpers published to the electors of a State electorate on matters relevant to the record and suitability of candidates for the election. Nothing in Lang v Willis[46] generally, and nothing in the judgment of Dixon J in that case in particular, requires a contrary finding.  All that Dixon J said[47] in Lang is that election speeches made to a large audience of unidentified persons are not privileged even though "the speaker deals with matters in which the electors have an interest". Those remarks were made nearly 60 years before this Court recognised the impact that the Constitution has on the law of defamation in respect of governmental and political matters. And the remarks were not directed to statements made by electors, candidates or their helpers to electors in a State electorate concerning the record and suitability of a candidate for election by those electors.

    [46](1934) 52 CLR 637.

    [47](1934) 52 CLR 637 at 667.

74. Roberts and Case, if held to their cases in the Full Court, will retain the advantage of a finding of qualified privilege.  And they are entitled to rely on the impact that the constitutional freedom of communication has on the law of malice in respect of publications concerning political matters that are protected by conventional qualified privilege.  As we have pointed out, intentionally causing political damage to the plaintiff or his or her party is not an improper motive where a statement on political matters is protected by conventional qualified privilege.  Nor can the vigour of an attack or the pungency of a defamatory statement, without more, be evidence of improper motive in respect of such a statement.

    Malice

75. An occasion of qualified privilege must not be used for a purpose or motive foreign to the duty or interest that protects the making of the statement.  A purpose or motive that is foreign to the occasion and actuates the making of the statement is called express malice.  The term "express malice" is used in contrast to presumed or implied malice that at common law arises on proof of a false and defamatory statement.  Proof of express malice destroys qualified privilege.  Accordingly, for the purpose of that privilege, express malice ("malice") is any improper motive or purpose that induces the defendant to use the occasion of qualified privilege to defame the plaintiff.  In Browne v Dunn[48], Lord Herschell LC said that malice "means making use of the occasion for some indirect purpose".Early in the history of the law of qualified privilege – which did not come into the common law until the end of the 18th century – Lord Campbell CJ said that malice was "any indirect motive, other than a sense of duty"[49].  Similarly, in an action for slander of title, Parke B[50] said that "acting maliciously means acting from a bad motive".  "If the occasion is privileged", said[51] Brett LJ, "it is so for some reason, and the defendant is only entitled to the protection of the privilege if he uses the occasion for that reason."  In Horrocks v Lowe[52] – the leading English case on malice – Lord Diplock said:

    "So, the motive with which the defendant on a privileged occasion made a statement defamatory of the plaintiff becomes crucial.  The protection might, however, be illusory if the onus lay on him to prove that he was actuated solely by a sense of the relevant duty or a desire to protect the relevant interest.  So he is entitled to be protected by the privilege unless some other dominant and improper motive on his part is proved.  'Express malice' is the term of art descriptive of such a motive."

    [48](1893) 6 R 67 at 72.

    [49]Dickson v Earl of Wilton (1859) 1 F & F 419 at 427 [175 ER 790 at 793].

    [50]Brook v Rawl (1849) 19 LJ Ex 114 at 115.

    [51]Clark v Molyneux (1877) 3 QBD 237 at 246.

    [52][1975] AC 135 at 149.

76. Improper motive in making the defamatory publication must not be confused with the defendant's ill-will, knowledge of falsity, recklessness, lack of belief in the defamatory statement, bias, prejudice or any other motive than duty or interest for making the publication.  If one of these matters is proved, it usually provides a premise for inferring that the defendant was actuated by an improper motive in making the publication.  Indeed, proof that the defendant knew that a defamatory statement made on an occasion of qualified privilege was untrue is ordinarily conclusive evidence that the publication was actuated by an improper motive[53].  But, leaving aside the special case of knowledge of falsity, mere proof of the defendant's ill-will, prejudice, bias, recklessness, lack of belief in truth or improper motive is not sufficient to establish malice.  The evidence or the publication must also show some ground for concluding that the ill‑will, lack of belief in the truth of the publication, recklessness, bias, prejudice or other motive existed on the privileged occasion and actuated the publication[54].  Even knowledge or a belief that the defamatory statement was false will not destroy the privilege, if the defendant was under a legal duty to make the communication[55].  In such cases, the truth of the defamation is not a matter that concerns the defendant, and provides no ground for inferring that the publication was actuated by an improper motive.  Thus, a police officer who is bound to report statements concerning other officers to a superior will not lose the protection of the privilege even though he or she knows or believes that the statement is false and defamatory unless the officer falsified the information[56].  Conversely, even if the defendant believes that the defamatory statement is true, malice will be established by proof that the publication was actuated by a motive foreign to the privileged occasion[57].  That is because qualified privilege is, and can only be, destroyed by the existence of an improper motive that actuates the publication.

    [53]Mowlds v Fergusson (1939) 40 SR (NSW) 311 at 327 per Jordan CJ, Davidson and Halse Rogers JJ agreeing; Horrocks v Lowe [1975] AC 135 at 149-150 per Lord Diplock.

    [54]Mowlds v Fergusson (1939) 40 SR (NSW) 311 at 327-329 per Jordan CJ, Davidson and Halse Rogers JJ agreeing.

    [55]Clark v Molyneux (1877) 3 QBD 237 at 244 per Bramwell LJ; Stuart v Bell [1891] 2 QB 341 at 351 per Lindley LJ; British Railway Traffic and Electric Co v The CRC Co and The London County Council [1922] 2 KB 260 at 271 per McCardie J; Mowlds v Fergusson (1939) 40 SR (NSW) 311 at 318 per Jordan CJ, Davidson and Halse Rogers JJ agreeing; Oldfield v Keogh (1941) 41 SR (NSW) 206 at 213-214 per Jordan CJ, Halse Rogers and Street JJ agreeing.

    [56]Mowlds v Fergusson (1939) 40 SR (NSW) 311 at 335-336 per Jordan CJ, Davidson and Halse Rogers JJ agreeing.

    [57]Watt v Longsdon [1930] 1 KB 130 at 154-155 per Greer LJ.

77. If the defendant knew the statement was untrue when he or she made it, it is almost invariably conclusive evidence of malice.  That is because a defendant who knowingly publishes false and defamatory material almost certainly has some improper motive for doing so, despite the inability of the plaintiff to identify the motive[58].  In Barbaro v Amalgamated Television Services Pty Ltd[59], Hunt J said that "[i]n some of the older authorities, an absence of honest belief on the part of the defendant is treated merely as some evidence of an indirect motive which alone is said to constitute express malice, but the better view, in my opinion, is to treat the two as different kinds of malice".  His Honour cited no authority for this novel proposition.  Some years later, in Hanrahan v Ainsworth[60], Clarke JA said that, since Horrocks, "it has been accepted that if it is proved that a person has made a defamatory statement without an honest belief in its truth or for a dominant improper purpose ... malice will be made out".

    [58]Clark v Molyneux (1877) 3 QBD 237 at 247 per Brett LJ; Mowlds v Fergusson (1939) 40 SR (NSW) 311 at 329 per Jordan CJ, Davidson and Halse Rogers JJ agreeing.

    [59](1985) 1 NSWLR 30 at 51.

    [60](1990) 22 NSWLR 73 at 102-103.

78. The knowledge and experience of Justice Hunt in defamation matters is well recognised.  But with great respect to his Honour and Clarke JA, they erred in asserting that lack of honest belief defeated a defence of qualified privilege.  There is no basis in principle or authority for treating knowledge of falsity or lack of honest belief as a separate head of, or equivalent to, malice.  In the law of qualified privilege, the common law has always regarded malice as the publishing of defamatory material with an improper motive.  Knowledge of falsity is "almost conclusive evidence" that the defendant had some improper motive in publishing the material and that it actuated the publication.  That judges have treated knowledge of falsity as almost conclusive evidence of malice is no ground, however, for treating it as a separate head of, or equivalent to, malice.  In some circumstances, lack of honest belief in what has been published may also give rise to the inference that the matter was published for a motive or purpose that is foreign to the occasion of qualified privilege.  Nothing in Lord Diplock's speech in Horrocks[61] supports treating the defendant's knowledge or lack of belief as a separate head of, or equivalent to, malice.  Indeed, Lord Diplock expressly said[62] that, if it is proved that the defendant did not believe that what he or she published was true, it was "generally conclusive evidence" of improper motive. 

    [61][1975] AC 135.

    [62][1975] AC 135 at 149-150.

79. As we have said, malice means a motive for, or a purpose of, defaming the plaintiff that is inconsistent with the duty or interest that protects the occasion of the publication.  It is the motive or purpose for which the occasion is used that is ultimately decisive, not the defendant's belief in the truth of the matter.  As Cotton LJ said in Clark v Molyneux[63]:

    "The question is not whether the defendant has done that which other men as men of the world would not have done, or whether the defendant acted in the belief that the statements he made were true, but whether he acted as he did from a desire to discharge his duty."

    [63](1877) 3 QBD 237 at 249-250.

80. The conceptual difficulties with using lack of honest belief as equivalent to malice have increased since Rules of Court have required plaintiffs to plead the meanings on which they rely even when those meanings are the natural and ordinary meanings of the publication.  When the author of a written or oral statement gives evidence, that person is invariably asked whether he or she intended to convey each of the pleaded meanings.  If the author denies intending any of those meanings and the tribunal of fact finds that the publication had that meaning, the author is then said to have no honest belief in the defamatory meaning and, relying on Barbaro, that the privilege is destroyed.  That is exactly what occurred in the present case in respect of Case.  Martin J held that, because Case did not claim to believe in the truth of a statement as interpreted by the trial judge and the Full Court, he was guilty of malice.

81. In Austin v Mirror Newspapers Ltd[64], the Judicial Committee had to consider a similar problem in considering the issue of reasonableness under the statutory defence of qualified privilege given by s 22 of the Defamation Act 1974 (NSW). The Judicial Committee held, correctly in our opinion, that an author may have an honest belief in what he or she writes even though the author does not intend the writing to have one of the defamatory meanings found by the jury. Lord Griffiths, giving the Advice of the Committee, said[65]:

    "Although the answer to the interrogatory is evidence that can be used in an attempt to defeat a defence of comment it does not follow that it will necessarily defeat the defence of statutory qualified privilege.  Words are often capable of more than one meaning, and because the jury may attach to them a defamatory meaning which the writer did not intend, it does not follow that the writer did not honestly believe in the truth of what he wrote and reasonably intended a different meaning to be given to his language.  In this case Mr Casey gave evidence and said that he did honestly believe in the truth of what he wrote.  The trial judge believed him and the answer to the interrogatory is a wholly insufficient basis to undermine the opinion of the trial judge which the Court of Appeal were free to accept." (Emphasis added)

    [64](1985) 3 NSWLR 354.

    [65](1985) 3 NSWLR 354 at 362.

82. These remarks of Lord Griffiths apply where the issue is the malice of the defendant.  The defence of qualified privilege would be dramatically curtailed if defendants had to intend and believe in the truth of every meaning that a judge or jury later gave to the publication.  The privilege is not curtailed if lack of belief in a particular meaning is merely some evidence from which it may be inferred in some circumstances that the defendant was actuated by an improper motive.  Nor is it curtailed if one applies the doctrinally sound view of Cotton LJ[66] that the question is not "whether the defendant acted in the belief that the statements he made were true, but whether he acted as he did from a desire to discharge his duty [or interest]".

    [66]Clark v Molyneux (1877) 3 QBD 237 at 249-250.

83. In our opinion, neither lack of honest belief nor knowledge of falsity ipso facto destroys a defence of qualified privilege.  But knowledge of falsity is "almost conclusive evidence" of improper motive, except where the defendant is under a legal duty to publish the defamation.

84. In exceptional cases, the sheer recklessness of the defendant in making the defamatory statement, may justify a finding of malice.  In other cases, recklessness in combination with other factors may persuade the court that the publication was actuated by malice.  In the law of qualified privilege, as in other areas of the law, the defendant's recklessness may be so gross as to constitute wilful blindness, which the law will treat as equivalent to knowledge.  "When a person deliberately refrains from making inquiries because he prefers not to have the result, when he wilfully shuts his eyes for fear that he may learn the truth", said this Court in R v Crabbe[67], "he may for some purposes be treated as having the knowledge which he deliberately abstained from acquiring."  In less extreme cases, recklessness, when present with other factors, may be cogent evidence that the defendant used the occasion for some improper motive.  This is particularly so when the recklessness is associated with unreasoning prejudice on the part of the defendant.  In Royal Aquarium and Summer and Winter Garden Society v Parkinson[68], Lord Esher MR said:

    "If a person charged with the duty of dealing with other people's rights and interests has allowed his mind to fall into such a state of unreasoning prejudice in regard to the subject-matter that he was reckless whether what he stated was true or false, there would be evidence upon which a jury might say that he abused the occasion."

    [67](1985) 156 CLR 464 at 470.

    [68][1892] 1 QB 431 at 444.

85. Fifteen years earlier, as Brett LJ, Lord Esher MR had said[69]:

    "[I]f it be proved that out of anger, or for some other wrong motive, the defendant has stated as true that which he does not know to be true, and he has stated it whether it is true or not, recklessly, by reason of his anger or other motive, the jury may infer that he used the occasion, not for the reason which justifies it, but for the gratification of his anger or other indirect motive."

    [69]Clark v Molyneux (1877) 3 QBD 237 at 247.

86. In Lord Diplock's speech in Horrocks[70], there are passages that standing alone suggest mere recklessness or indifference to truth and falsity is sufficient to constitute malice.  But we do not think that Lord Diplock was intending to change the law, as it was laid down by Lord Esher MR in the above quotations.  In fact, in Horrocks Lord Diplock referred[71] to Lord Esher MR's judgments in these cases as correctly stating the law.  Furthermore, Lord Diplock introduced his discussion of "recklessness" by saying[72] that, if the defendant "publishes untrue defamatory matter recklessly, without considering or caring whether it be true or not, he is in this, as in other branches of the law, treated as if he knew it to be false" (emphasis added).  This statement makes it clear that Lord Diplock was using the term "reckless" in the sense of "wilful blindness", as explained by this Court in Crabbe[73]. 

    [70][1975] AC 135.

    [71][1975] AC 135 at 152.

    [72][1975] AC 135 at 150.

    [73](1985) 156 CLR 464 at 470.

87. Further, mere lack of belief in the truth of the communication is not to be treated as if it was equivalent to knowledge of the falsity of the communication and therefore as almost conclusive proof of malice.  The cases contain many statements to the effect that the privilege will be lost if the defendant did not honestly believe in the truth of a defamatory statement made on a privileged occasion[74].  If those statements mean no more than that qualified privilege is lost when the defendant knows or believes the defamatory statement is false, they are in accord with settled principle and authority.  But if they mean that the defendant loses the privilege unless he or she has a positive belief in the truth of the publication, it is not easy to reconcile them with basic principle.  They are not reconcilable, for example, with the principle that recklessness as to the truth or falsity of a publication, short of wilful blindness, will not destroy an occasion of qualified privilege unless it appears that the recklessness is accompanied by some other state of mind.  A person who is reckless as to whether the statement is true or false has no positive belief in the truth of the statement.  Yet as the above statements of Lord Esher MR in Royal Aquarium and Clark show, recklessness, short of wilful blindness, is not enough to destroy the privilege.  It must be accompanied by some other state of mind.  Where that is so, the recklessness is evidence that the publication was actuated by the accompanying state of mind, be it anger, hatred, bias or unreasoning prejudice.  As Jordan CJ pointed out in Mowlds v Fergusson[75]:

    "All that the Royal Aquarium Case decides is that if a defendant is proved to be affected by a particular prejudice and is proved to have made a defamatory statement on a privileged occasion, not to serve the legitimate purposes of the occasion but to indulge this prejudice, express malice is made out.  In such a case, proof of the prejudice may serve both to explain how the defamatory statement came to be made, and also to justify the inference that it was made for the purpose of indulging the prejudice."

    [74]Horrocks v Lowe [1975] AC 135 at 150 per Lord Diplock; Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 at 51 per Hunt J; Hanrahan v Ainsworth (1990) 22 NSWLR 73 at 102-103 per Clarke JA.

    [75](1939) 40 SR (NSW) 311 at 323.

273. Prior J queried the meaning of what the appellants' counsel had said.  His Honour pointed out that the primary judge did deal with the Lange defence.  In response, counsel for the appellants said this:

     "He does.  I don't understand it would be subject of any challenge, I think he does it to cover all the bases.

     It was a live issue before him, because if his Honour had found, contrary to what he did find, that the publication was too wide, that the traditional qualified privilege didn't apply.  Then there was a further argument that had to be put to him.  In that circumstance he then had to address his mind to the extended privilege, and he, having found for the [appellants] on the first traditional qualified privilege, it wasn't really necessary for him to go ahead then to deal with the Lange privilege, but his Honour did, and no doubt for good reasons.  That finding may have been the subject of challenge in this appeal court and then it would have been appropriate that the extended privilege had also been addressed by him.  I don't think this court needs to be concerned about what his Honour says on the extended privilege on those pages."

274. The appeal failed.  The cross-appeal succeeded with respect to the first appellant and was rejected so far as the second appellant was concerned.  The respondent's compensatory damages were reassessed at $20,000 for the postcard, $35,000 for the FTT, and $45,000 for the PBSL distributed on the day of the election.  The members of the Court divided on some issues.

275. Prior J said this[245]:

     "The published material was defamatory of the plaintiff having the defamatory meanings contended for and found made out at the trial.  The defences of qualified privilege failed.  It is plain from the findings made by the trial judge that neither appellant had an honest belief in the truth of what was published.  [The second appellant] was properly found to be recklessly indifferent to the truth or falsity of the material he published.  [The first appellant] was properly identified as a person with an improper motive and no honest belief in the truth of what he published[246]." (Emphasis added)

     [245]Roberts and Case v Bass (2000) 78 SASR 302 at 304-305 [2].

     [246]Horrocks v Lowe [1975] AC 135 at 149-150; Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 at 50, 51.

276. After setting out some of the trial judge's findings as to the first appellant's state of mind Williams J said this[247]:

     "These are strong findings; in my opinion they are adequately supported by the evidence.  [The first appellant] was told that his allegations lacked foundation some eight days before polling day, but he persisted with the thrust of his allegations of impropriety.  [The second appellant] acknowledged that the plaintiff had been selected because he was a 'soft target'.  He could not provide any basis for a belief in the allegations.  I reject the submission made on the part of the appellants that they should be treated as having honest beliefs in the relevant respect." (Emphasis added)

     [247]Roberts and Case v Bass (2000) 78 SASR 302 at 314 [33].

277. His Honour made this finding about the motives of the appellants[248]:

     "Upon the evidence I am unable to identify any improper purpose attaching to the actions of either [appellant] and in this respect I would disagree with the conclusion of the trial judge.  The typical case of dominant improper purpose might be one where the defendant unnecessarily uses a privileged occasion simply to vent his spleen upon the plaintiff:  see, for example, in Angel v H H Bushell & Co Ltd[249], where the defendant sought to gratify feelings of animosity arising out of a failed business transaction by reporting the facts to a business referee who had previously recommended the plaintiff as trustworthy.  Another example of improper motive would be where the defendant is seeking to obtain some private advantage unconnected with the privilege[250].

     The privilege for matter published in an election campaign is based upon an interest or duty of informing the electorate of the merit (or lack of merit) of a candidate and this privilege extends to statements made on behalf of other candidates.  In my view the facts are consistent with the [appellants] becoming over‑enthusiastic in the support of their electoral cause.  They do not appear to have any special desire to hurt the plaintiff otherwise than in terms of his prospects of re‑election.  The plaintiff bore the onus of proof on this matter:  I would not uphold the trial judge's finding as to improper motive, although [the first appellant's] intransigence when faced with the true facts is not to his credit." (Emphasis added)

     [248]Roberts and Case v Bass (2000) 78 SASR 302 at 316 [43]‑[44].

     [249][1968] 1 QB 813 (see especially at 831).

     [250]See Horrocks v Lowe [1975] AC 135 at 150.

278. The third member of the Court, Martin J expressed this view on the question of motive.  After detailed reference to Lord Diplock's speech in Horrocks v Lowe[251] his Honour said[252]:

     "Applying those principles to the defence of qualified privilege advanced by [the first appellant], if the plaintiff proved that the dominant motive of [the first appellant] for the defamatory publications was a desire to injure the plaintiff, the defence failed.  In my opinion, the evidence was sufficient to justify the conclusion reached by the learned trial judge that [the first appellant] possessed a dominant motive to injure the plaintiff.  [the first appellant] engaged in a course of conduct over some months which was demonstrative of his ill-will toward the plaintiff.  His conduct when faced with requests by the Electoral Commissioner to correct his errors confirmed his ill-will as did the tenor and content of his evidence.  In my opinion, therefore, in this respect the finding of the learned trial judge should be upheld." (Emphasis added)

     [251][1975] AC 135 at 149.

     [252]Roberts and Case v Bass (2000) 78 SASR 302 at 325-326 [82].

279. With respect to the second appellant Martin J was of the opinion that his primary concern was to achieve the defeat of the respondent at the election, and that his motives were not malicious.  But his Honour held that the second appellant had been shown to be indifferent to the truth about the respondent and was therefore liable to him.  He said[253]:

     "The professed beliefs of [the second appellant] as to other statements were based on inadequate evidence and were influenced by both his enthusiasm for the cause of the Modbury Hospital and his desire to see the plaintiff removed from office.  Notwithstanding those inadequacies, I doubt that the evidence justified a finding that [the second appellant] did not possess those professed beliefs.  However, it is not necessary to decide this issue.  The learned trial judge was satisfied that [the second appellant] was indifferent within the meaning of the test posed by Lord Diplock.  That conclusion was reasonably open on the evidence.  In particular, [the second appellant] was indifferent to the imputation in the statement that the plaintiff was of such a character that he placed more importance on the rights of persons with respect to firearms than the safety of the electors' families.  Having reviewed the evidence, I am also satisfied that [the second appellant] was indifferent to the truth of the imputation apparent from the card viewed in its entirety that the plaintiff had engaged in discreditable conduct in the discharge of his parliamentary responsibilities.

     For these reasons, in my opinion the appeals by the [appellants] against the findings of liability should be dismissed." (Emphasis added)

     [253]Roberts and Case v Bass (2000) 78 SASR 302 at 337 [103]‑[104].

     The appeal to this Court

280. The appellants appeal to this Court from the dismissal of the appeals to the Full Court of the Supreme Court of South Australia.

281. In their joint notice of appeal to this Court, the appellants use two expressions, "dominant motive" and "express malice" to which later reference will be required.  The notice of appeal does not, in terms, seek to raise a Lange defence.  Having, at best, pleaded it obscurely at first instance, and having renounced any intention of seeking to show that the appellants acted reasonably during the appeal to the Full Court, they would not now, in any event, be entitled to rely upon it[254].  Nonetheless, in this Court, an attempt was made, as will appear, to invoke some aspects at least of what was said by this Court in Lange, notwithstanding that the primary judge's finding of unreasonableness on their part stands unchallenged, and in my opinion is unchallengeable.

     [254]University of Wollongong v Metwally [No 2] (1985) 59 ALJR 481; 60 ALR 68.

282. The appellants' grounds of appeal include that the first appellant's dominant motive, to cause political and electoral damage to the respondent could not, in effect, be a malicious motive:  that because Williams J and Martin J in the Full Court found that the second appellant did not publish pursuant to any improper purpose, their Honours should have, but failed to consider whether, the, or a "proper purpose" of his publication was the dominant purpose of the publication, in which event any "extraneous malice" would be rendered irrelevant; alternatively, in the case of the second appellant "extraneous malice" should be ignored or disregarded because the publication was of political advertisements during an election campaign.

283. The grounds of appeal also seek to set up that the Full Court failed to identify any motive other than a desire to cause political and electoral damage to the respondent, and that the primary judge's assessment of improper purpose coloured his findings about the appellants' beliefs, and therefore provided an unreliable foundation for the conclusions of the Full Court.  Other factual matters were raised, that during an election "actual malice" needs to be established with convincing clarity, and that false statements are unexceptionable unless made "with a high degree of awareness of their probable falsity".  The appellants' notice of appeal further contends that there was a failure on the part of the Full Court to identify any false statements, and that one at least of the members of the Full Court, Martin J, treated the trial judge's finding of "actual malice" as an unreviewable finding of fact.

284. The thrust of the appellants' written submissions is that even in a case of conventional qualified privilege, the decision of this Court in Lange exerts an influence:  that in some way "express malice" assumes a different form and complexion in a political context during an election campaign.  Contrary to their express disavowal in the Full Court of reliance upon a Lange defence, the appellants tried to argue the reasonableness of their conduct, and indeed asked this Court to give them the benefit of "the extended Lange privilege".  They also urged that "the implied Constitutional freedom of expression affect[ed] the matter", specifically that an appellate court's approach to express malice should be coloured by the existence of an implied constitutional freedom of expression.

     Lange defence unavailable and untenable

285. With respect generally to the Lange defence I would adhere to the opinions I expressed in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd[255].  It is unnecessary, however, for me to decide whether I am bound to, or should apply it, in this appeal for a number of reasons.  But I would add this to what I said in Lenah. Freedom of speech is no more under threat today than it was when the Constitution was drafted. That situation owes nothing to Lange.  It is a situation that has existed throughout at least the last 40 years.  Indeed, if anything, the contrary is the case.  This has explicitly recently been recognized in the United States and the United Kingdom by practitioners and academic observers of the art of journalism[256].  Australia is not unique in this respect.  The same trends are readily apparent here.  The expression "chilling effect [upon political discourse]" is no more than a metaphor, and, like many metaphors, an extravagantly inaccurate one.  And, if proof be needed of the undesirability of the importation, after more than 90 years, into the Constitution of an hitherto undetected judicial implication, this case provides it.  It will take years, years of uncertainty and diverse opinion for the Court to reach a settled view of the elements of the defence and the way in which it is to be applied.  Lange certainly does not exhaustively define its impact on the law of defamation.  I doubt whether any case, or series of cases will ever do so, and, as defamation is not a head of federal constitutional power, legislation can never be enacted to resolve the recurrent uncertainties to which it gives rise.  Furthermore, as the Chief Justice in his reasons in this case points out[257], the need for the common law to conform to the Australian Constitution [and therefore, I would add, the need at all for a new form of constitutional defence] is difficult to reconcile with the co‑existence of different tests for qualified privilege in the context of political debate.

     [255](2001) 76 ALJR 1 at 71-72 [338]; 185 ALR 1 at 97.

     [256]Writing of the media and others in the New Statesman on 4 June 2001 the journalist John Lloyd deplored the relentless attacks to which politicians are being subjected today:  "[t]hey do not consider … the truly radical thought that politicians assist rather than destroy the maintenance of civil society; that they are precious rather than disgusting individuals in a time of media dominance; that they defend rather than pollute the public sphere" ("The Scorn of the Literati", New Statesman, 4 June 2001 at 21-22).

     [257]Reasons of the Chief Justice at [3].

286. The first reason why a Lange defence must fail, as I have already intimated, is that it is simply not available to the appellants because it was expressly abandoned.  That the appellants may have done this because of a misconception about their prospects of success on appeal on a conventional qualified privilege defence, or that the reasonableness or otherwise of their conduct was, in their view, irrelevant to such a defence, cannot avail them on appeal.  They are bound by their conduct of the appeal to the Full Court.  The fact that the defence is a "constitutional defence" makes no difference.  If it were otherwise, a party might be able to abandon and revive at will a particular defence as it appeared to that party to be expedient to do so from time to time.  This was an ordinary piece of litigation between citizens.  No party is bound to rely on every apparently available defence, whether it is a constitutional one or not.

287. On any view of the merits, the appellants' conduct was unreasonable.  It should not be assumed, as the appellants appear to have done, that findings of conduct sufficient to defeat a defence of conventional qualified privilege will be irrelevant to any question of the reasonableness of publishers' conduct and vice versa.  It is difficult to imagine how anybody could be thought to be acting reasonably who is moved to act by spite, recklessness, utter indifference to the truth, abstention from inquiry about it, or failure to warn or give notice to the subject of the defamatory matter, and, who commits an offence in, or in connexion with the publication of it.  Conduct which is malicious so as to defeat a conventional qualified privilege defence, conduct which is in contumelious disregard of a plaintiff's rights so as to give rise to an award of exemplary damages, and unreasonable conduct generally, whether relied on for the purposes of demolishing a Lange defence or otherwise are likely to have much in common.  A defendant's conduct right up to the moment of verdict is not only relevant to the issues of both aggravated and exemplary damages, but also will usually throw light upon a publisher's motives, purposes and true intentions at the time of publication.  The manner of conduct of the actual trial by a defendant is itself capable of providing a basis for a finding of malice in publication[258].

     [258]Australian Consolidated Press Ltd v Uren (1966) 117 CLR 185 at 192 per McTiernan J. See also The Herald and Weekly Times Ltd v McGregor (1928) 41 CLR 254 at 267-268 per Isaacs J as to proof of state of mind.

288. Something in addition needs to be said about recklessness generally and in the context of a Lange defence.  With respect to the latter, nothing could be clearer than the Court's pronouncement[259] that it is for "the publisher to prove reasonableness of conduct."  Negligence is simply a want of reasonable care.  That would therefore defeat a constitutional defence.  Recklessness, a type of excessive conduct beyond mere carelessness also undoubtedly must do so.  And as the Court further said[260], "as a general rule, a defendant's conduct … will not be reasonable unless the defendant had reasonable grounds for believing that the imputation was true, took proper steps, so far as they were reasonably open, to verify the accuracy of the material and did not believe the imputation to be untrue."  Recklessness is, and has always been available as providing a basis for a finding of malice.

     [259]Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 574.

     [260]Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 574.

     Bases for findings of malice

289. What the appellants' submission also ignores, are the content and tone of the language used in the defamatory publications.  The language itself, in some, indeed many cases may be sufficient to give rise to an inference of malice.  In this case, the dogmatic, categorical, and unpleasant tone and content of each of the documents go at least some way towards establishing malice:  taken with the other matters referred to by the primary judge they provide ample grounds for a firm conclusion about it.

290. Both in their submissions and in their grounds of appeal, the appellants refer to "express malice" or "actual malice".  There is a reference to malice in the judgment of Lord Nicholls of Birkenhead NPJ in Tse Wai Chun Paul v Cheng.  His Lordship said this of it[261]:

     "In ordinary usage malice carries connotations of spite and ill-will.  This is not always so in legal usage.  In legal usage malice sometimes bears its popular meaning, sometimes not.  It is an imprecise term.  Historically, even within the bounds of the law of defamation, malice has borne more than one meaning.  Historically, defamation lay in publishing the words complained of 'falsely and maliciously'.  In this context malice meant merely that publication had been a wrongful act, done intentionally and without lawful excuse[262].  This was sometimes called malice in law, as distinct from malice in fact.  But even malice 'in fact', otherwise known as express malice or actual malice, may cover states of mind which are not malicious in the ordinary sense of the word.  This is so in the context of the defence of qualified privilege.  It is no wonder that Lord Bramwell described malice as 'that unfortunate word'[263]."

     [261][2001] EMLR 777 at 783 [23].

     [262]See Bayley J in Bromage v Prosser (1825) 4 B&C 247 at 255 [107 ER 1051 at 1054].

     [263]See Abrath v North Eastern Railway Co (1886) 11 App Cas 247 at 253.

291. The modern common law need draw no distinction between malice and express or actual malice.  Malice may include a variety of motives such as improper motive, dishonest purpose, indirect motive, collateral purpose, spite or ill-will, but not, necessarily, it may be said, the motive of damaging a candidate's political prospects.  The qualifying words "actual" or "express" add nothing except uncertainty and should be avoided, particularly when, in practice, malice is usually to be inferred in greater or lesser degree from a combination of two or more of the matters capable of providing evidence of it.

292. The appellants used the terms "dominant purpose" and "dominant motive" in their submissions.  Lord Nicholls in Tse Wai Chun Paul v Cheng also used those expressions throughout his judgment.  The latter was used by Lord Diplock in Horrocks v Lowe[264].  Its use, also, in my respectful opinion, may mislead.  The expression "absence of malice"[265] aptly captures the essential quality of the purpose or motive required of a defendant to enable him or her to enjoy the benefit of a defence of qualified privilege.  In order to defeat a defence of qualified privilege therefore, it will suffice for the plaintiff to demonstrate that the publication was not made out of a non-malicious motive, or motives:  the presence of a malicious motive will colour and inescapably taint the conduct of a publisher.

     [264][1975] AC 135 at 149, 150.

     [265]In the seventh edition (1974) of Gatley on Libel and Slander, the last edition before the decision of the House of Lords in Horrocks v Lowe [1975] AC 135, the expression "absence of malice" or "without malice" occurs repeatedly. For example: at pars 612; 807; 808 (with respect to an offer of amends under the Defamation Act 1952 (UK)); 1301 and 1330 ("absence of any malicious motive" on the question of mitigation of damages).  After Horrocks v Lowe the expression "dominant motive" appears, presumably because of its use then by Lord Diplock (see for example par 16.3 in the ninth edition (1998) of Gatley).  See also however the criticism of Horrocks v Lowe at par 16.6 of that edition.  "Absence of malice" is the expression used with apparent approval in this Court, for example in Smith's Newspapers Ltd v Becker (1932) 47 CLR 279 at 291 per Rich J; Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 142 per Menzies J; Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211 at 243, 249 per Brennan J; Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 133 per Mason CJ, Toohey and Gaudron JJ, 145 per Brennan J, 175 per Deane J and Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 572 where the Court uses the expression "without malice".

293. It follows that the appellants' submissions to the extent to which they rely upon a distinction between some lesser motive than a dominant motive, and a dominant motive, and between malice on the one hand, and express or actual malice on the other, are not well founded and do not advance the appeal.  Even if they were useful and valid expressions, the appeal would fail, because of the factual findings which have been made against the appellants on the issue of conventional qualified privilege.

     Appellants' grounds of appeal misconceived

294. In their written submissions the appellants put this:

     "The Appellants anticipated a cross-appeal on the common law finding, but none was forthcoming.  In those circumstances the Appellants considered that there was no need for them to take on the additional onus of establishing reasonability[266].  They advised the Full Court accordingly and did not pursue their Appeal to the Full Court against the Trial Judge's rejection of the Lange defence."

     [266]Makeig v Derwent [2000] NSWCA 136.

295. Notwithstanding the appellants' abandonment of reasonableness in the Full Court, the absence of any reference to a Lange defence in the appellants' notice of appeal to this Court and the paragraph in the written submissions that I have just quoted, during oral submissions the appellants put this proposition:

     "[B]ut we say that, indeed, the appellants did establish reasonableness, that [sic] Lange defence was pleaded and pressed as an alternative and the appellants asserted there was no obligation in material such as this to seek the response of a political opponent.  That was not reasonable.  That would never happen, to distinguish it from the situation a [sic] the mass medium."

296. The misconceptions continue.  The primary judge's finding of unreasonableness did not depend simply upon the failure of the appellants to seek a response from the respondent.  Their unreasonableness had many aspects:  the content and tone of the published matter, in the case of the first appellant, the compilation of a false and highly damaging document, the frequent flyer statement in the respondent's name, the failure to make any genuine inquiries about its subject matter before its publication, the deliberate attempt to humiliate, and therefore to ridicule the respondent by depicting him as, in effect, an uncaring, dishonest sybarite luxuriating in a tropical paradise at public expense, and worst, persistence in the publication of false matter after his attention had been drawn to its falsity, and in doing so, committing a quasi-criminal offence which he admitted afterwards by pleading guilty, and for which he was punished.

297. It is also important to keep in mind that by the time the matter had reached the Full Court, the appellants had abandoned any claim of fair comment and made no attempt there or here to identify any such comment in the published material.

298. So far as the second appellant is concerned, to turn up as a volunteer on the day of the election, to distribute defamatory matter in the form of the PSBL without having made any inquiries about its accuracy at all, well knowing, as he must have done, that the respondent would dispute, to say the least, many of the purportedly factual allegations contained in it, to distribute the material in a claimed state of indifference as to its truth; and being determined, as the trial judge found, to oust the respondent from Parliament at the election, were collectively well capable of being regarded as unreasonableness and malice on the part of the second appellant, even if the last taken alone might not be.  The ambiguous question that the second appellant was asked, presumably after deliberation by his counsel, and which evoked a negative response would do nothing to dispel the inference of malice available against the former:

     "Was there anything in [the card] which caused you any concern?"

299. It is necessary to deal with yet another misconception upon which the appellants' appeal was based.  It is that a finding of malice and perhaps unreasonableness, is either a finding of law or a finding of mixed law and fact.  A finding of malice is quintessentially a finding of fact.  It stands in the same category as a finding whether a defamatory imputation is conveyed by a publication.  Whether the evidence is capable of giving rise to a finding of malice is, just as, whether matter is capable of conveying a defamatory imputation, a question of law for a trial judge.  But when a trial judge finds the relevant capacities, then it is entirely a matter for the jury, or a judge sitting alone, to decide as a question of fact whether the capacities have been realized.  Often, animosity, collateral purpose, intransigence and other elements of malice, or unreasonableness will appear peculiarly from the way in which a witness conducts himself or herself in giving evidence.  A fact finder's advantages in relation to these matters will generally be very real ones.

     Lange defence would fail if it were available

300. Even if it were available in this case, the Lange defence would inevitably fail for the reasons that I have stated.

     Malice made out

301. What then remains?  I would accept that the imminence of an election and the heat of the emotions to which politics give rise are not irrelevant to a determination whether a publisher's conduct or motive is malicious.

302. But the law of this country has not reached the stage of tolerating, for the purposes of deciding whether a defence of conventional qualified privilege will succeed, or countenancing blatant lies.  The frequent flyer compilation in respect of the respondent was no more than a set of blatant lies, persisted in, even after an independent authority (the Electoral Commissioner) pointed out its falsity.  On account of it, and without reference to other aspects of the first appellant's conduct, his defence of conventional qualified privilege had to fail.

303. Nor has the law of this country reached the stage of accepting utter indifference or recklessness (the two may be equated with each other) with respect to the truth or falsity of defamatory matter, as a basis for defending its publication, on the ground of conventional qualified privilege, even in an electoral situation.  For the first appellant to seek to explain and justify an innocent state of mind on the basis that "[there was no]thing in [the PBSL] which caused [him] any concern" is to treat his obligation to act non‑maliciously with contempt.  There is no question on the whole of his evidence that he was prepared to go to practically any lengths to discredit the respondent.

304. In a political context, it may fairly readily be accepted that hasty words will be said, and actions taken.   But urgency of itself cannot provide an excuse, because urgency, very often, including in political affairs, is no more than a self-imposed imperative.  Take the situation of the second appellant.  He had been out of South Australia for some time before the election.  He volunteered to distribute what turned out to be defamatory matter at short notice, thereby depriving himself of any opportunity to verify its accuracy.  The most cursory of inspections of the PSBL, which he distributed for some hours on the day of the election, should have put him on his guard.  The first statement contained in it was clearly open to the interpretation that the respondent had already spent $32,000 of taxpayers' money on overseas travel.  There is no suggestion of any knowledge on the part of the second appellant as to the duration and dates that the respondent spent out of his electorate, or would, in the future, need to spend in his electorate, if he were to become the speaker.  To say, as the PSBL asserted, that the respondent had had numerous junkets at the electorate's expense was not only false but also was founded upon no reasonable basis in fact known to the second appellant.  The respondent's position on gun laws was, as will be the case with many political issues, incapable of being reduced to a simple proposition.  If a person chooses to do so, then inevitably he or she will run the risk of both oversimplification and misrepresentation.  As H L Mencken said[267], "there is always a well‑known solution to every human problem – neat, plausible, and wrong."  To say, as the PSBL did, that the respondent put gun rights ahead of the electorate's families' safety, in proximity to a reference to the tragic Port Arthur massacre, was to run a very high risk of misrepresentation, which the second respondent was prepared to, and did take.

     [267]Mencken, "The Divine Afflatus", in Prejudices:  Second Series, (1920) 155 at 158.

305. There is no reason why this Court should do anything to encourage recklessness and misrepresentation as to factual matters simply because they occur in electoral contests.  Invariably, the laws of this country require a reasonable period of notice of an election.  The candidates are obliged to nominate well ahead of one.  They know, and can expect that some hurtful things will be said about them, but their candidature does not provide an excuse for people to tell lies about them.  There is always sufficient time for rivals and detractors to inform themselves about facts relevant to a candidate's political conduct and opinions.  If the facts cannot be ascertained, whether because those who would misstate them have allowed themselves insufficient time to do so or otherwise, then they must face the risk of being answerable for those misstatements in defamation proceedings.  There is no public interest in the purveying of falsehoods.  It would be a sad day if elections were to provide an excuse for dishonesty.  Free speech does not mean freedom to tell lies, or a holiday from the truth during an election campaign.  To the contrary, honesty of purpose and language and the taking of reasonable care in the dissemination of material can only enhance the electoral process and good, responsible and representative government.  The interest of electors is not in being misled, but in having "what is honestly believed to be the truth communicated"[268].

     [268]Braddock v Bevins [1948] 1 KB 580 at 591 per Lord Greene MR.

     Other possible grounds of liability of the second appellant

306. In passing, I mention another basis upon which the second appellant might well have been held to have been malicious with respect to the PBSL although it was written and provided by the first appellant to the second appellant who only published it by distributing it.  It is that any personal malice on the second appellant's part did not have to be proved against him in the circumstances.  In Webb v Bloch Knox CJ said this of two defendants who participated in the publication of defamatory matter[269]:

     "It is unnecessary to consider whether the evidence establishes that they were personally guilty of malice, for they are jointly responsible with the defendants Bloch and Pratt for the publication of the libel and so joint tortfeasors with them; and in such a case the malice of one or more of the joint tortfeasors defeats the privilege of all those responsible in law for the publication of the defamatory matter (Smith v Streatfeild[270])."

     [269](1928) 41 CLR 331 at 359; see also Isaacs J at 365-366; Adam v Ward [1917] AC 309 (Egger v Viscount Chelmsford [1965] 1 QB 248 contra).

     [270][1913] 3 KB 764.

307. I do not however reject the second appellant's appeal on that basis as no argument was addressed to the Court with respect to it.

308. In this case, the trial judge drew a clear distinction between the damage caused by the first appellant and the damage caused by the second appellant, a distinction which was not, in my opinion, ungenerous to the second appellant.  The Full Court took the view that the damages awarded against the first appellant should be increased, thus further enlarging the difference between the respective awards.  That the second appellant "targeted" the respondent may not itself have established malice, but it was certainly relevant to the question of it.  The "targeting" taken with all of the other factors, self-imposed urgency, absence of any inquiry, capacity to read and understand the material being distributed, the content of that material, and the second appellant's long‑standing antipathy to the respondent and what he stood for made a finding of malice against him irresistible.  Even if, as I do not think could possibly be the case here, the second appellant had no opinion about the truth of the matter he was distributing, or was indifferent to its truth, he would still in any event be guilty of malice[271].  It is simply not possible for a disseminator of highly offensive defamatory matter to say credibly that he had no opinion about its reliability.

     [271]See Gatley on Libel and Slander, 7th ed (1974), par 722.

309. The conclusions that I have reached make it unnecessary for me to decide, assuming the point to be open to the respondent, which I very much doubt in view of the respondent's apparent acceptance of the contrary, whether the occasions of the publications were not ones of qualified privilege.  If I were, however, required to decide the point, I would be very much inclined to agree with the reasoning and conclusions of Hayne J with respect to it.  Lange would, in my opinion, produce the consequence that conventional qualified privilege will only be available as a defence in circumstances in which reciprocity truly exists.

310. In my opinion, there was abundant evidence upon which the primary judge could find that the conduct of both appellants was malicious, in the sense in which that word is used in relation to conventional qualified privilege.  The finding of fact, on malice, was not only open, but was also, in my opinion, inevitable for the reasons that I have stated.

311. I would dismiss the appeal with costs.