Bass v McDonald & TCN Channel Nine Pty Ltd (No.7) [2001] NSWSC 1026

Reported Decision : [2001] NSWSC 1026 [2001] ACL Rep 145 NSW 53

New South Wales Supreme Court

CITATION : Bass v McDonald & TCN Channel Nine Pty Ltd (No.7) [2001] NSWSC 1026 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 16791/90 17 - 19 October 2001 22 & 23 October 2001 HEARING DATE(S) : 25 & 26 October 2001 29 - 31 October 2001 1 November 2001 JUDGMENT DATE : 21 November 2001

Robin Bass PARTIES : Thomas McDonald TCN Channel Nine Pty Ltd JUDGMENT OF : Sperling J at 1

COUNSEL : Mr T Molomby with Mr R Rasmussen for the Plaintiff Mr B McClintock SC with Mr M Richardson for the Second Defendant SOLICITORS : William Oates Lawyers for the Plaintiff Gilbert & Tobin Lawyers for the Second Defendant CATCHWORDS : Defamation - defence of "Qualified Protection - Excuse" under Queensland and Tasmanian legislation - whether lack of "good faith" an available reply in the case of publication of a riposte by a third party LEGISLATION CITED : Defamation Act 1889 (Queensland), s4 & s16 DECISION : See paragraph 16 of the judgment.

- 3 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Defamation List Sperling J

Wednesday 21 November 2001

16791/90 Robin Bass v Thomas McDonald & TCN Channel Nine Pty Ltd Judgment (No.7 – Re construction and operation of Defamation Act 1889 (Queensland), s16(2)) 1 His Honour: At a stage in the trial when the evidence was complete, subject only to the tender of some documentary material, a question arose concerning a statutory defence pleaded by the defendant in relation to publication in Queensland and Tasmania. (The common law defence of qualified privilege is not available in those states). 2 The legislation in the two states is identical. I dealt with the matter by reference to the Queensland statute. At that stage of the trial, publication in Tasmania was contentious. I subsequently ruled that there was no evidence of publication in that state. 3 The defence as ultimately pleaded, was as follows: 10. Further, and in the alternative, in answer to the FASC [the second further amended statement of claim], to the extent that it is found that the matter complained of was published in Queensland and/or Tasmania (which is not admitted) of and concerning the plaintiff (which is not admitted), conveyed the plaintiff's imputations or any one or more of the plaintiff's imputations (which is denied), and that the plaintiff's imputations or any one or more of the plaintiff's imputations are defamatory of the plaintiff (which is denied), the defendant says: (a) the matter complained of was published, in good faith, for the purpose of giving information to the persons to whom the matter complained of was made with respect to subjects as to which those persons had such an interest in knowing the truth as to make the conduct of the defendant in publishing the matter complained of reasonable under the circumstances in order to answer or refute defamatory matter published by the plaintiff concerning the Building Workers Industrial Union. 4 The Defamation Act 1889 (Queensland) provides a defence of what is called "Qualified protection – excuse". The following are the relevant provisions of the legislation: 4(1) Any imputation concerning any person, or any member of the person's family, whether living or dead, by which the reputation of that person is likely to be injured, or by which the person is likely to be injured in the person's profession or trade, or by which other persons are likely to be induced to shun or avoid or ridicule or despise the person, is called "defamatory" , and the matter of the imputation is called "defamatory matter" . 16(1) It is a lawful excuse for the publication of defamatory matter - (g) if the publication is made in good faith in order to answer or refute some other defamatory matter published by the person defamed concerning the person making the publication or some other person; . . . . . (2) For the purposes of this section, a publication is said to be made in good faith if the matter published is relevant to the matters the existence of which may excuse the publication in good faith of defamatory matter; if the manner and extent of the publication does not exceed what is reasonably sufficient for the occasion; and if the person by whom it is made is not actuated by ill will to the person defamed, or by any other improper motive, and does not believe the defamatory matter to be untrue. 5 The defence was pleaded pursuant to s16(1)(g). 6 It was common ground that the question of good faith in s16(2) was for me rather than for the jury, and that there was a rebuttable presumption of good faith in favour of the defendant. 7 The argument began with an application by Mr Molomby for a ruling that certain issues of fact relevant to good faith be submitted to the jury. This was complemented by an application by Mr McClintock for a ruling that the plaintiff had no case in law for the absence of good faith. 8 On 1 November 2001, I made the following ruling (Transcript 391): I hold that on the proper construction of the Defamation Act 1889, Queensland, and of the corresponding legislation of Tasmania that the matters relied on by the plaintiff as establishing lack of good faith within the meaning of the legislation would not in law establish a lack of good faith were they made out factually by reference to the defence pleaded under section 16(1)(g) of the Queensland legislation and the corresponding provision of the Tasmanian legislation.