Appeal Outcome: Special leave refused with costs by the High Court - 13 June 2008 (S621/2007 & S622/2007) New South Wales Court of Appeal CITATION: Echo Publications Pty. Ltd. v. Tucker & Ors. Fast Buck$ v. Tucker & Anor (No.3) [2007] NSWCA 320 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 24 October 2007 JUDGMENT DATE: 16 November 2007 JUDGMENT OF: Mason P at 1; Hodgson JA at 2; McColl JA at 33 DECISION: 1.Echo Publications to pay the costs of the further hearing referred to in Order 1 made on 18 July 2007. 2. Fast Buck$ to pay any additional costs resulting from the further hearing referred to in Order 2 made on 18 July 2007. 3. Otherwise, no further orders made. CATCHWORDS: DEFAMATION - Privilege under s.22 of Defamation Act 1974 - Interest in having information - Publication of matter in the course of giving information - Reasonableness of publisher's conduct. LEGISLATION CITED: Defamation Act 1974 (NSW) s.22 Austin v. Mirror Newspapers Limited (1985) 3 NSWLR 354 Barbaro v. Amalgamated Television Services Pty. Limited (1985) 1 NSWLR 30 Collins v. Ryan (1991) 6 BR 229 CASES CITED: Lange v. Australian Broadcasting Commission (1997) 189 CLR 520 Morgan v. John Fairfax & Sons Limited (No.2) (1991) 23 NSWLR 374 Morosi v. Mirror Newspapers Limited [1977] 2 NSWLR 749 Wright v. Australian Broadcasting Commission [1977] 1 NSWLR 697 Echo Publications Pty. Ltd. - appellant PARTIES: Ross Tucker - 1st respondent Fast Buck$ - 2nd respondent FILE NUMBER(S): CA 40761/05; CA 40061/06 Mr. B. McClintock SC for the appellant COUNSEL: Mr. T. Hale SC with Mr. M. White for 1st respondent No appearance for Mr. Fast Buck$ Banki Haddock Fiora, Sydney for appellant SOLICITORS: Elliot & Sochacki, Mullumbimby for 1st respondent Mr. Fast Buck$ is self-represented LOWER COURT JURISDICTION: Supreme Court, Court of Appeal (Orders and Costs) LOWER COURT FILE NUMBER(S): As above LOWER COURT JUDICIAL OFFICER: Mason P, Hodgson JA, McColl JA LOWER COURT MEDIUM NEUTRAL CITATION: [2007] NSWCA 73; [2007] NSWCA 170 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40761/05 CA 40061/06 SC 20472/00 MASON P HODGSON JA McCOLL JA Friday 16 November 2007 ECHO PUBLICATIONS PTY. LTD. V. TUCKER & ANOR. FAST BUCK$ V. TUCKER & ANOR. Judgment (No.3) 1 MASON P: I agree with Hodgson JA. 2 HODGSON JA: The background to this decision is set out in two previous judgments of this Court: judgment No.1 [2007] NSWCA 73 and judgment No.2 [2007] NSWCA 170. The question to be addressed is whether Echo Publications has made out a defence under s.22 of the Defamation Act 1974 (the Act), and if so, what consequential orders should be made in relation to Fast Buck$'s appeal and the question of costs. The Court has received further written submissions from all parties, and oral submissions from Echo Publications and Mr. Tucker. 3 It is necessary to note that at all material times, s.22 did not include subs.(2A), which was reproduced with the balance of s.22 at par.[5] of judgment No.1. That subsection was introduced in 2003. However, no submission was made to the effect that any of the matters set out in subs.(2A) were not relevant to the question of whether the conduct of the publisher, prior to its introduction, was reasonable in the circumstances. 4 It is convenient to set out again ss.22(1) and (2): 22 Information (1) Where, in respect of matter published to any person: (a) the recipient has an interest or apparent interest in having information on some subject, (b) the matter is published to the recipient in the course of giving to the recipient information on that subject, and (c) the conduct of the publisher in publishing that matter is reasonable in the circumstances there is a defence of qualified privilege for that publication. (2) For the purposes of subsection (1), a person has an apparent interest in having information on some subject if, but only if, at the time of the publication in question, the publisher believes on reasonable grounds that that person has that interest. 5 It is plain that the "matter" referred to in the opening words of s.22(1) and in pars.(b) and (c) is the defamatory matter: Wright v. Australian Broadcasting Commission [1977] 1 NSWLR 697 at 711, Morosi v. Mirror Newspapers Limited [1977] 2 NSWLR 749 at 796. 6 What s.22(1)(b) requires is that the defamatory matter be published to the recipients (here readers of The Echo) in the course of giving them information on a subject; and what s.22(1)(a) relevantly requires is that the recipients have an interest in having information on that subject. The alternative of "apparent interest" cannot apply in this case, because of the terms of s.22(2): cf. Barbaro v. Amalgamated Television Services Pty. Limited (1985) 1 NSWLR 30 at 38E. The third requirement, that of s.22(1)(c), is that the conduct of the publisher (here, Echo Publications) in publishing the defamatory matter be "reasonable in the circumstances". INTEREST IN HAVING INFORMATION IN A SUBJECT 7 It is necessary first to determine whether readers of The Echo had an interest in having information on some relevant subject, and to identify that subject. As to what can constitute such an interest, in Barbaro, Hunt J said this ((1985) 1 NSWLR at 40): It was not disputed by the plaintiff that those viewers who identified him in the telecast had a legitimate interest in the situation in Griffith as so described. The interest or apparent interest of the recipients need not be a proprietary one, nor even a pecuniary one: Howe v Lees (1910) 11 CLR 361 at 369, 396. The word "interest" is not used in any technical sense; it is used in the broadest popular sense, to connote that the interest in knowing a particular fact is not simply a matter of curiosity, but a matter of substance apart from its mere quality as news: (ibid at 369, 398); Andreyevich v Kosovich and Publicity Press (1938) Pty Ltd (1947) 47 SR (NSW) 357 at 363, 366; 64 WN 46 at 50. The interest must be definite; it may be direct or indirect, but it must not be vague or insubstantial — so long as the interest is of so tangible a nature that it is expedient to protect it for the common convenience and welfare of society, it will come within the privilege afforded by the section: Howe v Lees (at 377); Andreyevich v Kosovich and Publicity Press (1938) Pty Ltd (at 364; 50). 8 That approach was supported by the Privy Council in Austin v. Mirror Newspapers Limited (1985) 3 NSWLR 354 at 358-59: It is possible as a matter of construction to place a narrow or a broad construction on the words "an interest". The narrow construction would equate "an interest" with that type of interest which is usually looked for as an ingredient of the defence of qualified privilege at common law, that is to say, an interest material to the affairs of the recipient of the information such as would for instance assist in the making of an important decision or the determining of a particular course of action. It is for this narrow construction that the appellant contends. But it is clear that the courts in New South Wales have placed a broader construction upon the words "an interest" and have taken them to include any matter of genuine interest to the readership of the newspaper. In Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697 Reynolds JA, with whom Glass JA agreed, said (at 711), when considering s 22(1)(a) in respect of a television broadcast: "It cannot be denied that the recipient, in this case the general public, had an interest in having information on the subject of public affairs." In Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 the Court of Appeal drew a contrast between the interest required to find qualified privilege at common law with the wider interest referred to in s 22. They said (at 797): "The limited application of the common law principles of qualified privilege to publications in newspapers has already been discussed. Section 22 was designed to enlarge the protection afforded by these principles to defamatory publications generally, and it has a particular relevance to publications in newspapers; but it gives no carte blanche to newspapers to publish defamatory matter because the public has an interest in receiving information on the relevant subject. What the section does is to substitute reasonableness in the circumstances for the duty or interest which the common law principles of privilege require to be established." In Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 Hunt J said (at 40): "… The word 'interest' is not used in any technical sense; it is used in the broadest popular sense, to connote that the interest in knowing a particular fact is not simply a matter of curiosity, but a matter of substance apart from its mere quality as news." In Field v John Fairfax & Sons Ltd , (Court of Appeal, 23 May 1974, unreported), it was held that the public had an interest in the greyhound racing industry. Bearing in mind that this Act was clearly intended to widen the scope of the common law defence of qualified privilege, their Lordships see no reason to differ from the wider construction adopted by the courts in New South Wales and, applying this construction, accept the view of both the trial judge and the Court of Appeal that the readership of this daily newspaper had an interest in the performance and training of the Manly Rugby Football Club within the meaning of s 22(1)(a). 9 Echo Publications contends that the following were subjects on which readers of The Echo had an interest in having information: (1) Ms. Potts' response to the attack made on her. (2) The approval by a prominent local politician (Mr. Tucker) of the use of the newspaper of which he was a proprietor to make a damaging attack on a person not in the public eye, to denigrate the industrial laws of the State, and in doing so to make inaccurate statements on these matters. (3) The views, claims and assertions of another prominent local public figure (Fast Buck$) concerning these matters. 10 Mr. Hale SC for Mr. Tucker submitted that the primary judge was correct to hold that, apart from Ms. Potts' own response to any attack on her, the readers had no interest in having information on any of these subjects. 11 In my opinion, the contention of Echo Publications should be upheld, except in one respect. I do not think the readers had an interest in having information about Fast Buck$'s views, claims and assertions about Ms. Potts' response to the attack on her, as distinct from his views, claims and assertions about the way the newspaper had been used, with Mr. Tucker's approval. So I would qualify the third subject identified above by limiting it to the views, claims and assertions of Fast Buck$ on the second of the three subjects. 12 In coming to this view, I accept Mr. McClintock SC's submission that newspapers are important institutions in our society, and that there is an interest in the public to know how those with the capacity to control the conduct of newspapers are exercising that capacity. 13 This conclusion means that, in my opinion, the primary judge did make an error in his consideration of the s.22 defence, which requires that this Court should address the question for itself. This departure from my conclusion in judgment No.1 is due to what I held in judgment No.2 to be a misapprehension as to submissions made on behalf of Echo Publications to the primary judge. PUBLICATION OF DEFAMATORY MATTER IN THE COURSE OF GIVING INFORMATION 14 There is no doubt that the defamatory matter in this case was published in the course of giving the readers information about the three subjects I have identified. 15 Mr. Hale submitted that to satisfy this second requirement, the defamatory matter must be relevant, relying on Barbaro at pp.41-42. I note that Hunt J's statement to that effect referred to what had been said in Wright at 712 and in the Court of Appeal decision in Austin v. Mirror Newspapers Limited [1984] 2 NSWLR 383 at 390. 16 There may be a question whether relevance is necessary to satisfy this particular requirement; but there is no doubt that the publication of defamatory matter cannot be reasonable in circumstances involving the giving of information on a subject, unless the defamatory matter is relevant to the giving of that information. 17 The Court in judgment No.1 has held that the defamatory matter was relevant to Ms. Potts' response to the attack on her. In my opinion, it also had some relevance to Mr. Tucker's approval of the use of his newspaper to attack the ex-employee, Ms. Potts. Thus, in my opinion, the second requirement is satisfied. REASONABLENESS 18 The crucial question is whether Echo Publications has proved that its conduct in publishing the defamatory matter was reasonable in the circumstances. 19 Echo Publications relied on the following statement by Hunt J in Collins v. Ryan (1991) 6 BR 229 at 234-5: I am of the opinion that such an occasion of qualified privilege is arguably available (at least in its statutory form) in relation to letters to the editor and to other contributions from members of the public where the media provide a forum for their participation in the free discussion of matters of public interest. ...There seems to me to be a strong argument available to the second defendants that, as s.22 of the 1974 Act has substituted the reasonableness (in the circumstances) of the defendant's conduct in publishing the matter for the duly or interest which the common law principles of qualified privilege require ( Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 797), it is reasonable in the circumstances for members of the media to provide a forum in which members of the public may not only express their opinions but also assert and debate factual issues even if the publisher does not himself honestly believe in the truth of the facts so asserted. 20 It also relied on the following statement by Hunt AJA in Morgan v. John Fairfax & Sons Limited (No.2) (1991) 23 NSWLR 374 at 385: Although not dealing with the defence of statutory qualified privilege, I should mention here the decision of the House of Lords in Horrocks v Lowe [1975] AC 135. Lord Diplock (at 149-150), with whom Lords Wilberforce, Hodson and Kilbrandon agreed, referred to another exceptional case in which a belief in the truth of what was published is not required for the defence of qualified privilege at common law — where a person may be under a duty to pass on, without endorsement, a defamatory report made by some other person: see, also, Clark v Molyneux (1877) LR 3 QBD 237 at 244; Oldfield v Keogh (1941) 41 SR (NSW) 206 at 211-212, 214; 58 WN (NSW) 167 at 171, 173. I would reserve for the future the question whether a similar exception applies to the defence of statutory qualified privilege: cf Collins v Ryan (1991) 6 BR 229 at 233-235. 21 Mr. McClintock submitted: (1) It was reasonable for Echo Publications to publish what purported to be Ms. Potts' response to the attack on her. (2) It was reasonable for it to publish Fast Buck$'s endorsement of this, without further enquiry as to the truth of the defamatory matter, because - (a) the defamatory assertions had a reliable source, namely Ms. Potts; (b) Echo Publications was providing a forum for Fast Buck$'s assertions; (c) it was publishing them as an advertisement, and therefore not endorsing what Fast Buck$ was saying; and (d) if enquiry of Mr. Tucker and his denial of the matter would make publication unreasonable or require editing and/or censorship, this would stifle political debate. 22 Mr. Hale submitted that conduct cannot be reasonable where the publisher publishes untrue defamatory matter having taken no steps to check the accuracy of allegations made and having no belief in their truth. Even if such conduct might be reasonable in exceptional circumstances, this was not such a case. Echo Publications led no evidence as to the circumstances of publication or as to its reasons for its decision to publish. It led no evidence it was providing a forum for public debate; and the circumstance that the material was published as an advertisement, that is, a paid-for space, suggests the contrary. There was no invitation for further comment, or offer of an opportunity to reply. 23 On the question of the need for a publisher in a case such as this to call evidence, Mr. Hale referred to Wright at 712, Morosi at 797, and Lange v. Australian Broadcasting Commission (1997) 189 CLR 520 at 574. He submitted that, although the defendant in Barbaro succeeded on a s.22 defence without calling evidence, that was an exceptional case. What had been published was simply a video recording of events which themselves on their face made it reasonable to believe in the truth of the defamatory matter. 24 I have found this an extremely difficult question. It is plain that a publisher's state of mind may be relevant to reasonableness, for example whether or not the publisher believed in the truth of the defamatory matter. In this case, Echo Publications argues that it was not necessary to show such a belief; and in Barbaro, where the truth of the defamatory matter was strongly supported by the very material published, it was found not to be necessary for the publisher to give evidence of belief. However, it remains the case that the publisher's actual state of mind may be highly relevant. 25 It is also plain that many of the circumstances of publication may be relevant. It may be relevant how the material was received, what other information the publisher had about the material, and whether there were any grounds known to the publisher for believing the material either was or was not true, and so on. Reasonableness could be affected by whether or not the publisher was aware of certain facts. In the present case, for example, it could affect the reasonableness of Echo Publications' conduct to know whether it had reasons to believe that Ms. Potts' response to Mr. Tucker's attack on her had been accurately understood and reproduced by Fast Buck$. 26 Certainly, in my opinion, in cases such as this a relevant circumstance would be Echo Publications' assessment of Fast Buck$ as a reliable source of information, and also Echo Publications' assessment of the extent of public interest in being informed of Fast Buck$'s opinions on the subjects in question: that is, in both respects, what Echo Publications' actual assessment was and whether that assessment was objectively reasonable. The Court has some material on which it might reach a view as to what would be a reasonable assessment of these matters, but has no evidence from Echo Publications as to what its actual assessment was. This is not a case like Barbaro, where there was, even in the absence of evidence from the defendant itself, strong evidence which enabled a view to be reached as to what the publisher's relevant state of mind was. 27 In my opinion, this is a case where the conduct of Echo Publications might have been reasonable; but since the party in a position to lead evidence as to many circumstances relevant to the question of reasonableness has not done so, I am not satisfied it has discharged its onus of proving that its conduct was reasonable. 28 For those reasons, in my opinion the s.22 defence fails. SUBMISSIONS FROM FAST BUCK$ 29 I have not referred to Fast Buck$'s written submissions in the above reasons, but I have taken them into account. Some of them related to matters not now open for consideration, but I should address one general line of argument: namely, that even accepting the primary judge's decision that the defamatory imputations were false, the publication of the article (and in particular Fast Buck$'s endorsement of these imputations) was reasonable, because Mr. Tucker had himself acted so unreasonably in approving the use of his newspaper to make an attack on a defenceless former employee, which itself contained untrue statements; and The Echo article was no more than an appropriate response to that conduct. 30 I agree that proportionality of response is relevant to reasonableness. However, defamation law, in its attempt to strike a balance between freedom of speech and a person's interest in not being defamed, lays down detailed rules, and cases must be determined in accordance with those rules. It would not be a defence to a defamation claim to make out that what the defendant did was in response to something worse that the plaintiff had done. My view as to what the application of the relevant rules requires is as set out above and in judgments No. 1 and No. 2. 31 In relation to the matter of costs against Mr. Ross referred to at par.[138] of judgment No.1, Fast Buck$ has noted that Studdert J on 18 March 2002 gave Echo Publications its costs, but would make no order in favour of Fast Buck$ in his absence. I have not seen Studdert J's reasons and cannot comment on them. The situation remains that, since Mr. Ross is not a party before this Court, this Court cannot make any order against him. If any remedy is available, it must be sought by an application to which Mr. Ross is a party, which would need to be brought in the Court in which the s.7A trial occurred (which was, as Fast Buck$ has pointed out, not the District Court as wrongly stated in par.[138], but the Common Law Division of the Supreme Court). ORDERS 32 For those reasons I propose the following orders: 1. Echo Publications to pay the costs of the further hearing referred to in Order 1 made on 18 July 2007. 2. Fast Buck$ to pay any additional costs resulting from the further hearing referred to in Order 2 made on 18 July 2007. 3. Otherwise, no further orders made. 33 McCOLL JA: I agree with Hodgson JA. ********** 16/11/2007 - Incorrect placement of name - Paragraph(s) Par.[9](3) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.