Belbin v McLean[2004] QCA 181

SUPREME COURT OF QUEENSLAND

[1]  WILLIAMS JA:  I have had the advantage of reading the reasons for judgment of Muir J and I agree with what he has said therein and the order proposed.

[2]  MUIR J:  The appellant appeals against an order of a judge in applications refusing the appellant’s application to strike out sub-paragraphs (c), (d) and (e) of paragraph 8 of the respondent’s fourth amended defence.

[3] The appeal, potentially, raises these issues:

(1) Whether the original publisher of defamatory matter which is republished by another can rely on a defence open to the republisher if the plaintiff does not allege the republication as a separate cause of action but relies on it as a matter going only to the damages suffered as a result of the original publication.

(2) Whether in the circumstances pleaded, s 101(2) of the Criminal Justice Act 1989[1] (“the Act”) confers a defence of absolute privilege, not only on a person who makes a relevant publication to the Criminal Justice Commission (“the CJC”) but on the person who provided the published material to that publisher.

(3) If question (2) is answered in the affirmative, is “a defence of absolute privilege” an answer to the appellant’s claim, having regard to the manner in which the appellant has pleaded her case?

(4) Did the learned primary judge’s exercise of discretion miscarry as a result of his failure to determine these matters?

Summary of relevant allegations in the fourth amended statement of claim

[4] In her fourth amended statement of claim, the appellant alleges that:

(1) the appellant was an employee of the Bureau of Emergency Services (“the Bureau”);

(2) the first and second respondents were also employees of the Bureau;

(3) on 23 April 1993, the first and second respondents each published to a director of the Bureau a statutory declaration of that date containing material defamatory of the appellant;

(4) the contents of the statutory declarations were republished by the Director to officers in the employ of the CJC and such republication in each case was:

(i) a natural and probable consequence of the original publication; and/or

(ii) impliedly authorised by the respondents; and/or

(iii) intended by the respondents to be republished as the matter was reported to a person, namely the Director, who was then under a duty to refer it to the CJC;

(5)by reason of the above matters, the appellant is entitled to aggravated and exemplary damages.

Relevant provisions of the defence

[5] In the defence, each respondent admits providing his or her statutory declaration made on 23 April 1993 to the Director and alleges that such publication was made in good faith.

[6] Paragraph 8 of the defence provides –

“8.The Defendants do not admit the allegations contained in paragraphs 2, 3, 12 and 13 of the Fourth Third Amended Statement of Claim Amended Plaint, and say that:-

(a)each Defendant intended Baker [a director of the Bureau] to consider the contents of their respective statutory declarations;

(b)they admit that Baker was under a duty to refer to the complaints section of the Criminal Justice Commission all matters that he suspected involved, or may involve, official misconduct;

(c)they do not know and therefore are unable to admit what matters were republished to officers in the employ of the Criminal Justice Commission in April 1993, but apprehend that their respective statutory declarations and other information were referred to the complaints section of the Criminal Justice Commission pursuant to s.37(2) of the Criminal Justice Act, 1989;

(d)say that any such communication to the Criminal Justice Commission was made for the purpose of the discharge of the functions and responsibilities of the Commission or for the functions of any organisational unit of the Commission;

(e)say that any such communication is the subject of absolute privilege pursuant to s.101(2) of the Criminal Justice Act, 1989.”

[7] The allegations in paragraphs 12 and 13 of the fourth amended statement of claim are those referred to in paragraph [4] (4) above.

The appellant’s arguments

[8] The appellant, in respect of republication by the Director of the defamatory matter to the CJC, claims against each respondent for the original publication and relies on the republications as matters exacerbating the damages flowing from the original publication. She does not, as she may have done, claim against the respondents for the original publications and also for the republications as separate causes of action.

[9] Although the republisher is protected from liability in respect of the republications by s 101(2) of the Act, its terms afford no protection to the respondents as it does not raise “a defence” to the appellant’s claim for damages flowing from the original publications sued upon and the republications, in respect of which no separate cause of action is alleged.

[10]  The primary judge did not decide the central issue between the parties as he took the view that the “precise characterisation of the defendants’ state of mind, individually or collectively, may be relevant in determining whether or not absolute privilege is attracted and whether therefore no entitlement for damages for republication exists” and consequently that “it is preferable to leave it to the trial judge to resolve those issues”.

[11]  The primary judge erred as the respondents do not plead that the republication to the CJC was the free, voluntary and unauthorised act of the Director over which they had no control. On the contrary, they plead matters which admit that the Director was subject to a duty to refer to the CJC all matters he suspected involved, or may involve, official misconduct and that they knew that their allegations would be investigated. The words in the alleged defamatory matter impute official misconduct to the appellant in her capacity as an employee of the Bureau.

[12]  It is not an essential element of an original publisher’s liability upon a republication that in every case the original publisher must know and intend that the defamation be republished to a specific person or recipient. It is enough that it is in fact republished to a person or recipient within the reasonable contemplation of the original publisher.[2]

The respondent’s arguments

[13]  It is accepted that a plaintiff may sue a defendant, both for the original publication, and for the republication as separate causes of action or, alternatively, sue the defendant for the original publication only and seek to recover the damage the plaintiff suffered by reason of its repetition or republication where the defendant is responsible for that repetition or republication.[3]

[14]  Liability for republication should not depend on the form in which the republication is pleaded and it does not. Where the republisher has a defence which protects him from liability for the republication, that defence is available to the original publisher.[4]

[15]  In the analogous case of a newspaper published in a number of States, a plaintiff may plead publication as having taken place both in the State in which proceedings are instituted and interstate. Alternatively, it may plead publication in the forum and rely on the interstate publication as a matter going to damages. In both cases, the defendant is entitled to rely on any defences available in the interstate jurisdictions in respect of the interstate publications.[5]

[16]  Where, as is the case here, the republication is the subject of absolute privilege, if the defendant “is to be treated as a publisher on the occasion of the republication, there is simply no wrong on that occasion”.[6]

[17]  Section 101(2) affords absolute privilege to the publication. Its protection is not limited to the publisher. It would be “a bizarre result” if s 101(2) was read so restrictively that it did not afford protection to a communication such as that under consideration merely because it was made indirectly through an appropriate and responsible officer rather than directly to the CJC.

[18]  There was no erroneous exercise of discretion by the primary judge as it was desirable that the point under consideration be determined after appropriate evidence was adduced at the commencement of the trial.

Authority for the appellant’s claim for damages in respect of republication

[19]  The appellant’s argument is grounded in the following principles articulated by Hunt J in Toomey v Mirror Newspapers Ltd: [7]

“Where a plaintiff complains of publication by the defendant in New South Wales, and where the defendant is also sought to be made responsible in law for the subsequent republication of the matter complained of by others (whether in this State or elsewhere) – in accordance with Speight v Gosnay (1891) 60 LJQB 231 at 232; Ratcliffe v Evans [1892] 2 QB 524 at 530; Weld-Blundell v Stephens [1920] AC 956 at 982,999- the plaintiff has a choice:

(a) he may sue the defendant both for the original publication and for the republication as separate causes of action; and usually in whatever form in which that republication takes place: …

(b) he may sue the defendant for the original publication only, but seek to recover as a consequence of that original publication the damage which he has suffered by reason of its repetition or republication where the defendant is responsible for that repetition or republication: …”

[20]  In respect of the second choice, his Honour explained: [8]

“Where a defendant is responsible in law for a republication, because he intended the matter complained of to be republished, or because that republication was the natural and probable result of his own publication, or where the original publication was made to a person who was under a moral duty to repeat the matter complained of to another (at least, it would seem, where such was foreseeable), the damage which flows from the republication must be considered to be such as would flow from the defendant’s original publication in the ordinary and usual course of things and thus be recoverable as a consequence of that original publication in accordance with the general principles relating to damages in tort: …

Once this principle is seen to be the basis for the liability of the original publisher for the damages which flowed from such a republication, there cannot, in my view, be any logical distinction drawn between the damages for which a defendant is liable where he makes a multiple publication himself and those for which he is liable where, in foreseeable circumstances, someone else republishes what he has himself published. Nor can any logical distinction be drawn between those two cases where the other publications which are not made the subject of separate causes of action in the proceedings are outside the jurisdiction of this Court.”

The parties accepted the accuracy of the foregoing statements of principle.

Construction of section 101(2) of the Act

[21]  Section 101(2) of the Act provides:

“(2) In proceedings for defamation there is a defence of absolute privilege in respect of a publication to or by the commission or an officer of the commission made for the purpose of the discharge of the functions and responsibilities of the commission or of any of the functions of an organisational unit of the commission.”

The heading of section 101 is “Protection from liability”.

[22]  It is common ground that the publication by the Director of the statutory declarations to the CJC falls within subsection (2) and confers on the Director the defence of absolute privilege. The subsection does not confine the defence to a specified person or persons. It is expressed to apply “in respect of” a prescribed publication.

[23]  The words “in respect of” have been said to “have the widest possible meaning of any expression intended to convey some connection or relation between the two subject-matters to which the words refer”.[9] Consequently, if the words of the subsection are given their normal meaning, the defence is capable of application to an original publisher as well as a republisher.

[24]  The appellant seeks to rely on the principle that legislative provisions taking away “a right of action for damages of the citizen are construed ‘strictly’, even jealously”.[10] The general principle in that regard was stated in the following terms by Barwick CJ in Wade v New South Wales Rutile Mining Co Pty Ltd:[11]

“But perhaps even more importantly, the fundamental principle that if Parliament intends to derogate from the common law right of the citizen it should make its law in that respect plain is pertinent to the question whether any such implication should be sought to be made. The courts are not entitled, and ought not, to eke out a derogation of such private rights by implications not rendered necessary by the words used by Parliament but merely considered to be consistent with the policy which the courts conclude or suppose the Parliament to have intended to implement. Consequently, I feel bound to give s. 70D its literal operation.”

Those principles, however, whilst of undoubted importance, do not assist the appellant here. There is nothing forced or contrived about the construction of section 101(2) advanced by the respondents. Nor does it rely on any implications.

[25]  Absolute privilege pertaining to judicial proceedings is not confined to words spoken or written in a courtroom. It extends to statements in documents produced in evidence and to “any document published on an ‘occasion properly incidental [to judicial proceedings], and necessary for [them]’”.[12] There is thus nothing remarkable about a provision which extends a defence of absolute privilege to original publishers such as the respondents.

[26]  There is also good reason to suppose that the Legislature would have intended the defence provided by section 101(2) to apply to a person providing evidence relevant to the functions of the CJC where that person’s evidentiary statement was placed before the CJC for its purposes through an intermediary. Were that not the case, informants would be placed at risk, deterred from volunteering information and the CJC’s ability to perform its functions affected adversely. Accordingly, in my view, the subsection may, in appropriate circumstances, afford a defence of absolute privilege to original publishers such as the respondents in the event of a republication. Whether or not conduct is “in respect of a publication” falls to be determined in any given case by reference to all relevant facts. For that reason, it is not the type of question which ought be determined on an interlocutory application, unless it is apparent that there is no reasonable possibility that the outcome of the determination could be affected by evidence.

The application of the defence of absolute privilege

[27]  The appellant, however, contends that even if section 101(2) was capable of providing a defence to an original publisher for a republication, the section is of no assistance to the respondents. The point is that, as the respondents are not sued on the republications there is no claim or cause of action in respect of the republications to which the defence might apply.  Putting it another way, as there is no cause of action based on the republications, there is no occasion or scope for a “defence” of absolute privilege.

[28]  The absolute privilege defence, insofar as it applies to judicial or quasi-judicial proceedings, is based on the necessity “that persons involved in judicial proceedings whether judge, jury, parties, witnesses or legal representatives be able to discharge their duties freely and without fear of civil action”.[13] It is not to be thought that despite the court’s traditional reluctance to extend its application,[14] the protection which the principle affords is circumscribed by artificial or technical limitations.

[29]  The point of the defence, insofar as it applies to judicial and quasi-judicial tribunals, is to ensure the effective operation of those bodies by protecting a participant in their proceedings from suffering harm as a result of legal action against such a participant for his or her conduct in connection with the proceedings. The content of absolute privilege is described, variously, as “freedom” or “immunity” from “suit” or “action”.[15] The greater will usually include the lesser and the conventional terminology, when regard is had to the rationale for the principle, is apt to cover any remedy claimed in legal proceedings against a person to whom the defence is open. If there is any doubt about the matter it can be dispelled by brief reference to discussion of the defence in the authorities.

[30]  In Mann v O'Neill, Brennan CJ, Dawson, Toohey and Gaudron JJ, after observing that absolute privilege attaches to statements made in the course of judicial proceedings “because it is an indispensable attribute of the judicial process”, said: [16]

“Were civil liability to attach or be capable of attaching, it would impede inquiry as to the truth and justice of the matter and jeopardise the ‘safe administration of justice’.”

[31]  In his reasons in Mann,[17] McHugh J referred, with apparent approval, to the following passage from the reasons of Lopes LJ in Royal Aquarium and Summer and Winter Garden Society v Parkinson:[18]

“The authorities establish beyond all question this: that neither party, witness, counsel, jury, nor judge, can be put to answer civilly or criminally for words spoken in office; that no action of libel or slander lies, whether against judges, counsel, witnesses, or parties, for words written or spoken in the course of any proceeding before any Court recognised by law …”.

[32]  Later in his reasons,[19] his Honour said:

“Absolute privilege is given to cases within the category of ‘statements made in the course of judicial or quasi-judicial proceedings’ because the efficient functioning of the administration of justice requires that judges, witnesses, and parties be free to speak without the deterrent fear of a defamation action.”

[33]  Gummow J[20] observed that:

“…the doctrine is described more aptly as precluding liability by conferring an absolute immunity. This was the description applied in this Court in Jamieson v The Queen (1993) 177 CLR 574 at 581-583, 589-590: … In approaching the issues which arise on the present appeal, it is appropriate to bear in mind the remarks by Gavan Duffy CJ, Rich and Dixon JJ in Gibbons v Duffell, that what they identified as this ‘indefeasible immunity’:

‘is given only where upon clear grounds of public policy a remedy must be denied to private injury because complete freedom from suit appears indispensable to the effective performance of judicial, legislative or official functions. The presumption is against such a privilege and its extension is not favoured (Royal Aquarium and Summer and Winter Garden Society Ltd v Parkinson [1892] 1 QB 431.). Its application should end where its necessity ceases to be evident.’”

[34]  Kirby J also referred to the principle as involving “an absolute privilege or immunity for defamation”.[21] He subsequently observed:[22]

“At common law, for reasons of public policy, absolute freedom was accorded, in certain limited and defined circumstances, to publish matter about another without risk of being rendered accountable for the truth or falsity of the communication or the bona fides or mala fides that lay behind it.”

[35]  In Watson v McEwan, Halsbury LC said: [23]

“By complete authority, including the authority of this House, it has been decided that the privilege of a witness, the immunity from responsibility in an action when evidence has been given by him in a Court of justice, is too well established now to be shaken.”

[36]  Consequently, the appellant’s construction of the words “defence of absolute privilege” is unduly restrictive and inconsistent with authority. I can see no reason either why the defence is not capable of operation so as to meet a claim for damages “in respect of a publication” to which section 101(2) applied even if the effect of the defence is only to reduce the quantum of damages.

Conclusion

[37]  In view of the foregoing, it is unnecessary to determine the point of general principle stated in paragraph [3] (1) above. It is also unnecessary, and undesirable, to decide it as the availability of the defence to the respondents depends on the construction of section 101(2) and its application to the facts found on trial. I therefore propose to make only a few brief observations on the question. It is addressed and answered in the affirmative by the learned authors of Gatley on Libel and Slander.[24]

[38]  A similar question was raised in a strike out application before Byrne J in Smith v Harris.[25] In that case, his Honour refused to strike out the allegedly offending paragraphs in the defence on the basis that they were not clearly untenable. He observed that the plaintiff’s submission raised difficult issues, amongst which was “whether the principle contended for may operate differently depending on the circumstances of the republication.”

[39]  In the case of a defence of absolute privilege, which was not under consideration in Smith v Harris, the denial to the original publisher of the benefit of a defence open to the republisher could seriously undermine the protection of the defence. For example, if the quantum of damages able to be recovered from a publisher of defamatory information to a parliamentarian could be greatly increased by virtue of republication in Parliament, there would be an obvious practical restraint on the parliamentarian’s freedom to use the information. Similar concerns could arise in relation to legal proceedings. Considerations such as these, and dicta of Hunt J in Toomey v Mirror Newspapers Ltd,[26] support the conclusion that a defence of absolute privilege open to a republisher may be availed of by the original publisher. The appellant’s argument identified a decision in the United States which supported a contrary conclusion,[27] but as I have said, it is unnecessary to determine the point.

[40]  It is also not obvious to me that the circumstances in which the republications took place, as alleged in subparagraphs (c) and (d) of paragraph 8, and the republication’s attraction of absolute privilege for the republisher, are irrelevant to the determination of damages, even if the appellant’s central arguments had been upheld.[28]

[41]  For the above reasons, the appellant’s strike-out application should have been dismissed in the exercise of the primary judge’s discretion and I would dismiss the appeal with costs.

[42]  MULLINS J:  I agree with the reasons for judgment of Muir J and that the appeal should be dismissed with costs.