Roberts v Bass

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: Gleeson CJ,Gaudron,McHugh,Gummow JJ,Kirby J,Hayne J,Callinan J
• Judgment Date: 12 December 2002
• Neutral Citation: [2002] HCA 57,2002-1212 HCA C
• Docket Number: A37/2001
• Date: 12 December 2002

[2002] HCA 57

HIGH COURT OF AUSTRALIA

Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ

A37/2001

Geoffrey Mark Roberts & Anor

Appellants

and

Rodney Piers Bass

Respondent

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)

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’.

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.

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.

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 Corporation2, that it requires further development.

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 Bevins3; 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.

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.

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 Lange8, ‘common law malice’.

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 Lowe9, 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...