Mather v Smith (No 1)[2014] QCA 65

SUPREME COURT OF QUEENSLAND

[1] MARGARET McMURDO P:  I agree with Fraser JA’s reasons for granting the application for leave to appeal but dismissing the appeal with costs.

[2] FRASER JA:  After a jury trial in the District Court, on 31 October 2013 the primary judge gave judgment for the plaintiff against the defendant for compensatory damages for defamation of $70,000 and aggravated damages of $15,000.  The defendant has applied for leave to appeal against the judgment.[1]  In accordance with the Court’s usual practice, the Court heard submissions upon the merits of the proposed appeal on the footing that, if leave to appeal were granted, the Court would give judgment in the appeal.

Factual and procedural background

[3] The plaintiff and the defendant were elected members of the Livingstone Shire Council before it was amalgamated within the Rockhampton Regional Council.  Each of them nominated for election for a northern ward, Division 1, of the Rockhampton Regional Council in the inaugural election of that Council held on 15 March 2008.  Division 1 corresponded in part with the former Livingstone Shire Council area.  The effect of the jury’s answers to some of the questions put by the trial judge was that, during an interview broadcast by a commercial radio station, Radio 4RO, on the day before the election the defendant made the following defamatory and untrue imputations of the plaintiff:

“That Mr Smith condoned the construction of a road by the Livingstone Shire Council at the cost of the rate payers within the Livingstone Shire Council for the private and exclusive use of one non rate paying individual so that individual could go fishing.”

“That Mr Smith, in the knowledge that the road was for the private and exclusive use of one individual so that individual could go fishing, allowed the road to be constructed at the cost of the rate payers of the Livingstone Shire Council.”

“That Mr Smith knew a private road was built with public funds for one non-rate paying person so he could go fishing and did nothing about it.”

[4] The jury answered “No” to the question whether the defendant was actuated by malice in making the publication.  In relation to each imputation, the jury answered “Yes” to the question whether the imputation was a communication made in the course of discussion of political matters and “No” to the question whether the defendant acted reasonably in publishing those imputations.

[5] Reasonableness in making the publication is a requirement for the category of qualified privilege for political and governmental communications referred to in Lange v Australian Broadcasting Corporation.[2]  The primary judge expressed agreement with the jury’s answer that the defendant did not act reasonably in publishing the imputations, finding that the defendant did not offer reasonable grounds for believing the defamatory imputations to be true, her evidence seemed to be that she did not believe the substance of them, although she had known of the relevant facts for a protracted period she did not make the allegations until the eve of the election so that the plaintiff had little opportunity to respond before the election, and the defamatory imputations had “a flavour of corruption” and the potential to unfairly damage the plaintiff’s prospects of re-election.[3]  Both parties’ counsel had submitted to the trial judge that the question whether a publication was reasonable for the purpose of qualified privilege for political and governmental communications was for the jury to decide, but there is authority that this is a question for the trial judge with the jury’s role being limited to resolving any disputed facts relating to that issue.[4]  It is not necessary to consider that issue further because the defendant did not seek to challenge the judgment on any ground relating to qualified privilege in relation to political and governmental communications.

[6] Nor did the defendant argue that there was a third category of qualified privilege in relation to communications of that character which was not qualified by the requirement of reasonableness.[5]  The issues in the proposed appeal concern only the category of common law qualified privilege as formulated by English judges in the 19th Century and adopted as part of the Australian common law (which I will call “traditional qualified privilege”):

“In general, an action lies for the malicious publication of statements which are false in fact, and injurious to the character of another (within the well known limits as to verbal slander), and the law considers such publication as malicious, unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. In such cases, the occasion prevents the inference of malice, which the law draws from unauthorized communications, and affords a qualified defence depending upon the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits.”[6] (emphasis added)

[7] Traditional qualified privilege arises only 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…”[7].  Reciprocity of interest or duty is essential.[8]  (Traditional qualified privilege is qualified “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”,[9] but that is not in issue because the jury rejected the plaintiff’s allegation that the defendant was actuated by malice.)

[8] After the jury had answered the numerous questions put to it by the primary judge a dispute arose whether judgment should be given for or against the plaintiff.  In June 2013 the primary judge gave leave to the parties to file and serve further written submissions upon the question whether the traditional qualified privilege protected each or any of the defamatory imputations.[10]  The primary judge considered those submissions and held that, although the jury’s answers made it clear that the jury had rejected all of the defences put to it in respect of the three defamatory imputations, there had been no determination in respect of traditional qualified privilege because the jury had not been asked whether the audience to whom the defamatory imputations was published was too wide.  The primary judge considered that because the jury had been discharged the only potential means of resolving the issue was a re-trial or a finding of fact by the primary judge.  After observing that the power of a trial judge to order a re-trial after a jury had determined all questions put to it was unclear, the primary judge decided to “complete the present trial by making the final finding of fact necessary to determine whether the conventional defence protected each or any of the defamatory imputations”.[11]  On 4 July 2013 the primary judge decided that the publication was not protected by traditional qualified privilege because the defamatory imputations were broadcast “well beyond the electorate of the parties” and “a substantial part of the audience did not have the requisite interest”.[12]

Issues in the proposed appeal

[9] The defendant argued that the primary judge should not have embarked upon what was submitted to be a fact finding exercise or ruled against the privilege because the plaintiff’s pleadings and his counsel’s conduct of the trial demonstrated that the plaintiff did not challenge traditional qualified privilege on the ground that the publication was too wide and, in that context, the jury’s answers to the questions established the privilege.  Alternatively, the defendant argued that the primary judge’s decision was wrong.

Was the effect of the extent of the publication upon traditional qualified privilege in issue?

[10] The amended defence did not contradict the allegation in paragraph 2 of the amended statement of claim that the publication was broadcast “to the public at large”.  Paragraph 5(h) of the amended defence alleged that “the publications were made in circumstances where the defendant had a duty to make them known to the listeners of 4RO and Michael Bailey [the interviewer] who had an interest in knowing that information…”.[13]  Paragraph 3 of the amended reply responded that: “the listeners of 4RO and Michael Bailey did not have an interest or apparent interest in receiving information which was false, as much of what was presented in the interview was”;[14] “whilst the imputations were conveyed in the course of giving information to listeners on the subjects with which the imputations were concerned, neither the imputations nor the information were conveyed by the defendant for that purpose, the defendant’s real purpose being as alleged in paragraph 4A of the amended statement of claim” (which alleged that the defendant published the defamation “with malevolence”);[15] (most relevantly, in paragraph 3(g) of the amended reply) “such duty as the defendant had (and the plaintiff makes no such concession) did not extend to publishing matters carrying the imputations alleged”; and “whilst the publication was in the course of an election campaign concerning the plaintiff and relevant to matters which the electors would have to consider, the electors had no interest in receiving false information…or in such a way as was deliberately and malevolently calculated primarily to damage the plaintiff rather than honestly to inform them…”.[16]

[11] The defendant argued that the effect of the amended reply was that the only ground upon which the plaintiff denied that the defendant had a duty to publish to the listeners of 4RO and that those listeners had an interest in hearing the publication was that the published information was false.  On that premise it was submitted that that there was no issue about the extent of the publication in relation to traditional qualified privilege and, because the truth or falsity of the publication was irrelevant to the claimed privilege, the plaintiff had admitted or was deemed to have admitted the traditional qualified privilege in relation to the publication to all of the listeners of 4RO.

[12] The pleadings were confusing and imprecise in some respects, there were apparently no requests for particulars of very general allegations, and the plaintiff did rely upon the falsity of the imputations as a ground for challenging the claimed privilege.  Even so, the effect of the extent of the publication upon the claimed privilege was in issue.  The amended defence did not put in issue the plaintiff’s allegation that the radio broadcast was made to the public at large.  In that context, paragraph 5(h) of the amended defence conveyed that the defendant had a duty to publish to all members of the public who listened to the broadcast.  That central allegation was put in issue by paragraph 3(g) of the amended reply, including in particular by the words “and the plaintiff makes no such concession”.  The form of that non-admission was far from ideal and might have been open to challenge, but its meaning was clear enough, the defendant did not apply to have it struck out for deficiency in form or otherwise, and the defendant conducted the trial on the footing that the extent of the publication was a live issue in relation to the claimed privilege.

[13] It was not until after the jury answered the questions put to it by the primary judge that the defendant argued that the plaintiff could not rely upon the extent of the publication as a ground for denying the claimed privilege.  As the primary judge pointed out, that argument departed from the way in which the trial had been conducted.[17]  The plaintiff’s counsel had examined the plaintiff and cross-examined the defendant upon the extent of the publication and the defendant’s counsel had re-examined upon that issue:

Plaintiff: evidence-in-chief

“… You are familiar not just with Division 1 or the [Livingstone] Shire Council area as it used to be, but Rockhampton generally?-- Yes.

...

To your knowledge, what's the sort of footprint, if I can put it that way, the broadcast footprint of 4RO?-- From what I have learnt, the footprint is quite significant in terms of actual distance.  Is that what you mean?

Yes?-- Certainly north of Rockhampton it's the only AM station that you can pick up, apart from the ABC, for some 160, 170 kilometres north and it is quite audible certainly as far south of Rockhampton as Miriamvale.

For those of us who are a bit geographically challenged, how far south is that?-- I am sorry, Miriamvale is about 160, 170 kilometres south of Rockhampton.  It's still quite audible there.”[18]

Defendant: cross-examination

“…, the radio station on which the interview took place, that covers Rockhampton and the surrounding areas; yes?--  Probably up as far as St Lawrence, perhaps a hundred kilometres either way.  Perhaps a little more.

Yes.  Well, you heard what Mr Smith had to say about the coverage yesterday, would you broadly agree with what he said?--  I’d say, yes, that sounds right.

And Division 1, your division, largely reflected the old Livingstone Shire Council boundaries?-- I'd say a good half it I'd say.

And that is all to the north of Rockhampton, it's not in Rockhampton proper is it?  It’s on the northern boundary of Rockhampton?-- Yes, it’s on the northern boundary.  We have quite a bit of rural residential on the outskirts of town, yes.

And it takes in Yeppoon I think as well, does it?-- Yes, a large part of Yeppoon, right from the east coast to the west coast - to the west river coast, river boundaries.”[19]

Defendant: re-examination

“…[Y]ou were asked about the breadth of the audience for 4RO, that’s the extent of the audience?-- Yes.

And you agreed that it went to a wide area?-- I'm not sure of the extent, but I’d say it’s a fairly wide area.

…

The audience that 4RO was published to, were they people, listeners, who would be concerned with what the committee would do in respect of any particular road or otherwise?-- I don’t believe it would have any bearing on them whatsoever.

Sorry.  Just to be clear.  Are you telling me that the audience has no interest in what the council committee is doing?--  You’re talking about the wider audience?

Yes?--  -----is that what you’re saying?  They wouldn’t even know what I was talking about I don’t think.

When you say the “wider audience”-----?--  I’m talking about Emerald and places that are-----

It goes out to there, does it?--  I think it does.  I think it goes fairly close to Emerald.

Because that wasn’t what we heard before, but you think it does?--  I’m not too sure what the extent of the broadcast is.

Okay.  Then I’ll leave it at that?--  I’d say a good hour driving – a good hour drive.”[20]

[14] The re-examination of the defendant in particular supports the primary judge’s conclusion that the trial was run on the basis that the effect of the extent of the publication upon the defendant’s claims of privilege was treated as being in issue.  The primary judge was right to refuse to allow the defendant to depart from the way in which her counsel had run the trial.

[15] The defendant argued that the plaintiff had subsequently treated the effect upon the claimed privilege of the extent of the publication as not being in issue when, in the course of submissions about the questions which should be put to the jury, the plaintiff’s counsel submitted that two draft questions didn’t need to be asked of the jury if the primary judge ruled against the plaintiff on his “Roberts v Bass point”.  Those questions were in the following terms:

“Primary Question 3

It is [sic] more likely than not that persons other than electors entitled to vote in the election for Division 1 on 15 March 2008 heard the broadcast?

Primary Question 4

It is [sic] more likely than not that persons other than electors entitled to vote in the election for the Rockhampton Regional Council heard the broadcast?”

[16] Before the plaintiff’s counsel made the statement, the defendant’s counsel had made it clear that the defendant did not seek to have primary questions 3 and 4 put to the jury.[21] It is also relevant to note that the defendant bore the onus of establishing the privilege she claimed and she was obliged to plead the facts necessary to support that claim,[22] and if the plaintiff disputed any such fact the defendant was obliged to ensure that the dispute was resolved by a question being put to the jury.[23] The amended defence did not allege that the broadcast was made only to electors; to the contrary, it did not put in issue the plaintiff’s allegation that the publication was made to the public at large and the plea of traditional qualified privilege in paragraph 5(h) alleged a duty to “the listeners” of the broadcast, an audience which presumably comprehended electors and non-electors alike.  The plea of traditional qualified privilege was therefore deficient because it did not allege any interest in the listeners such as might attract the alleged duty to publish to them.

[17] The deficiency remains even if the plea was understood as invoking the interests of electors in Division 1.  That is so because there was no allegation that the broadcast was restricted to electors in that ward and the defendant did not plead any fact to support the alleged duty to publish to those members of the public at large who were not electors.  Nor did the amended defence allege any fact in support of a claim that the privilege subsisted although the publication was not limited to persons to whom any alleged duty was owed.  Thus, for example, the defendant did not allege that the listeners were predominantly electors in Division 1 and that the radio broadcast was the only or most practicable way of communicating with those electors, or that the listeners were predominantly electors in the Rockhampton Regional Council and those listeners who were not electors in Division 1 possessed an interest in hearing the publication as electors in the Council.

[18] There was no suggestion that the plaintiff conducted the trial without regard to the established rule that the onus of pleading and proving the facts necessary to establish traditional qualified privilege lay upon the defendant.  Nor was the statement by the plaintiff’s counsel that he did not require primary questions 3 and 4 to be put to the jury an indication that the plaintiff conceded that the defendant owed the alleged duty to all of the listeners of the broadcast.  Such a construction of that statement seems most improbable in the light of both counsels’ questions of the parties about the extent of the broadcast and the parties’ answers to those questions.  That the statement could not reasonably be construed as a waiver or election by the plaintiff not to rely upon the breadth of the publication to defeat the claim of traditional qualified privilege is also suggested by the reference to Roberts v Bass.  That suggests that the statement concerned the different category of qualified privilege for political and governmental communications.  At the very least, the statement was ambiguous in that respect.  It was incapable of amounting to a waiver or election of the kind which the defendant advocated.

[19] The defendant referred also to the absence of any submissions to the jury upon the extent of the broadcast.  Since that was presumably a consequence of the absence of any relevant question of fact for the jury to answer it does not advance the defendant’s argument.

[20] Finally in this respect, the defendant relied upon the primary judge’s ruling that “I am leaving conventional qualified privilege in the circumstances where you’ve heard there’s only one radio station apart from the ABC for the district.”  The ruling does not seem to have been responsive to the plaintiff’s argument, which concerned political communications privilege rather than traditional qualified privilege.  In any case, the ruling reflected a conclusion, not that the privilege subsisted despite the extent of the broadcast, but that the evidence was capable of supporting such a conclusion.  That militates against the defendant’s argument that the effect of the extent of the broadcast upon traditional qualified privilege was not in issue.  That argument should not be accepted.

[21] It is appropriate here to make three further points about the primary judge’s ruling.  First, the primary judge appears to have misconstrued the plaintiff’s evidence, with which the defendant broadly agreed, that 4RO and the ABC were the only AM stations which could be picked up 160 or 170 kilometres north of Rockhampton and that 4RO could be heard as far south of Rockhampton as Miriamvale; there was no evidence that there was no other radio station which broadcast either only within Rockhampton, or only within Rockhampton and an area beyond Rockhampton which was substantially less extensive than the area of the 4RO broadcast.  Secondly, to the extent that the ruling suggested that the ultimate question whether the publication was protected by qualified privilege was a question for the jury that was an error, for reasons developed under the next heading.  Thirdly, as I also explain under the next heading, no question was put to the jury about the defendant’s plea of traditional qualified privilege.

Did the primary judge err by embarking upon a fact finding exercise and deciding whether the publication was protected by traditional common law qualified privilege?

[22] The defendant argued that, in the context of the pleaded and litigated issues, the jury’s affirmative answer to the following questions in relation to each defamatory imputation required the conclusion that traditional common law qualified privilege was established:

“(6)Did the listeners of 4RO have an interest or apparent interest in having information which Councillor Mather believed the listeners had on the subjects set out in the imputation and the involvement of Mr Smith and other Councillors in the Works and Infrastructure Committee of the Livingstone Shire Council?

(7)Was the imputation published to the listeners of 4RO published in the course of giving those listeners information on the subjects set out above?

(8)Was the imputation published in the course of participating in an election campaign concerning Mr Smith and relevant to matters which the electors would have to consider in deciding which way to vote and in which matters the electors had an interest in knowing?”

[23] Counsel for the plaintiff advanced the contrary argument that those questions did not describe the elements of this privilege.

[24] It is noteworthy that no question reflected the terms of the plea of traditional qualified privilege in paragraph 5(h) of the amended defence.  Questions 6 – 8 reflected different pleas.  The defendant ultimately did not challenge the plaintiff’s argument that the jury’s affirmative answer to question 6 was irrelevant.  That answer suggested no more than that the interest or apparent interest of the listeners matched the defendant’s belief about their interest, but the publisher’s belief about the interest of those to whom a publication is made is irrelevant in this category of qualified privilege.[24]  Furthermore, as the primary judge concluded, since the defendant’s own evidence was that she believed that part of the audience to whom the interview had been published had no interest in receiving the information, the affirmative answer conveyed that at least that part of the audience had no interest in hearing the broadcast.  Plainly enough, question 6 was directed to the quite different statutory qualified privilege in s 30 of the Defamation Act 2005 (Qld), which is not in issue in this application.  Question 7 was also directed to that statutory privilege rather than to the traditional common law defence, as the primary judge concluded.[25]  Question 8 was inapt, or at least inadequate, in relation to the defendant’s plea of traditional qualified privilege because it referred to “the electors”, rather than to “the listeners” – a term which comprehended the public at large, electors and all others alike.  The defendant argued that when question 8 was read in the context of the references to the listeners in questions 6 and 7, the expression “the electors” in question 8 should be understood as a reference to “the listeners”.  But whilst the affirmative answer to question 8 might be understood as a finding that those listeners who were electors possessed an interest in receiving the information, it could not be construed as a finding that all other listeners also possessed such an interest.

[25] No question was directed to the factual basis of the alleged duty to publish to all of “the listeners”.  That reflected the absence of any allegation about that issue in the amended defence.  Accordingly, the jury’s answers could not have required the primary judge to accept the defendant’s claim of traditional qualified privilege.

[26] In any case, however the jury’s answers should be construed they could not foreclose the answer to the question whether the claimed privilege existed.  Section 22(2) of the Defamation Act 2005 (Qld) makes it a function of the jury “to determine whether the defendant has published defamatory matter about the plaintiff and, if so, whether any defence raised by the defendant has been established”, but that subsection is qualified by the provision in s 22(5)(b) that nothing in s 22 “requires or permits a jury to determine any issue that, at general law, is an issue to be determined by the judicial officer”.  At the hearing, the Court invited written submissions from the parties about the effect of s 22 in the present context.  In response, the defendant and the plaintiff both submitted that the effect of section 22 is that the question whether an occasion is one of qualified privilege is an issue of law to be determined by the judge, the jury’s role being to determine all disputed questions of fact relating to the privilege.

[27] The general law is not in doubt:

“At common law it is well accepted that the question whether an occasion is the subject of qualified privilege or not is for the judge to determine as a matter of law, it being for the jury to determine any disputed issues of fact on the resolution of which the ultimate question of law may depend…”[26]

[28] In Belbin v Lower Murray Urban and Rural Water Corporation[27] Kaye J cited that statement and other authorities and held that the effect of s 22 of the Defamation Act 2005 (Vic) was that it was for the trial judge rather than the jury to decide whether a defence of qualified privilege at common law had been established, subject to the jury determining any disputed issues of fact relating to those defences.  Similarly, in Mizikovsky v Queensland Television Ltd & Ors (No 4)[28] Dalton J observed that s 22(5)(b) was “interpreted in practice as requiring the judge to determine the existence or otherwise of a qualified privilege defence”.  In Daily Examiner Pty Ltd v Mundine; Brown v Mundine,[29] the New South Wales Court of Appeal referred to authority for the same conclusion but refraining from deciding the point.  It is appropriate to decide this appeal on the basis, which both parties advocated, that under section 22 the question whether an occasion is one of qualified privilege is an issue of law to be determined by the judge, the jury’s role being to determine all disputed facts relating to the privilege.

[29] There was no issue that the defamatory imputations were made in a local authority election address by one candidate for election in the Division 1 ward, that they concerned the qualities and fitness for office of another candidate for election in the same ward, and that the publication was made in a radio broadcast “to the public at large”.[30]  It also seems to have been uncontroversial that the broadcast area comprehended Division 1 and other wards of the Rockhampton Regional Council, and that the broadcast could be heard for a very great distance to the north, south, and west of Rockhampton.  As I indicated earlier in these reasons, the defendant, upon whom the onus lay, did not plead, prove, or ask the primary judge to put to the jury any question of fact which was relevant to the alleged duty to make the publication to, or any interest to hear the publication in, the listeners.  The question whether traditional common law qualified privilege was established in relation to the defamatory imputations – in other words, the question whether the pleaded reciprocal duty and interest existed in relation to those imputations – was a question of law for the primary judge to decide with reference to the very limited factual background I have identified.

[30] The primary judge was therefore right to decide that question.  That the primary judge’s reasons for doing so were somewhat different is of no moment.  It is true that the primary judge’s conclusion that the defamatory imputations were broadcast “well beyond the electorate of the parties”[31] necessarily depended upon a conclusion about the boundaries of the ward.  That was not the subject of any admission or finding made by the jury, but the primary judge’s conclusion accorded with both parties’ evidence that the broadcast could be heard at least 100 kilometres from Rockhampton.  The defendant’s argument that the primary judge embarked upon an impermissible fact finding process should not be accepted.

Was the publication protected by traditional common law qualified privilege?

[31] The defendant argued that the traditional common law qualified privilege might subsist where the defamatory imputations were published to an audience which extended beyond persons who had a legitimate interest in receiving the communication.  The authorities cited by the defendant support that submission.  For example, in Stephens v West Australian Newspapers Ltd,[32] McHugh J observed:

“In determining whether a person has a legal, social or moral interest or duty to publish to the world at large, the extent of the publication and the proportion of readers who have a legitimate interest in receiving the communication are relevant factors to be weighed. It has long been established, however, that qualified privilege is not lost simply because the communication is read, seen or heard by persons having no legitimate interest in receiving the communication. If publication in a newspaper or by radio or television is the only reasonable mode of communicating with the public, qualified privilege will not be lost because it is read, seen or heard by persons who have no legitimate interest in receiving the communication.”

[32] McHugh J went on to refer to the exceptional nature of cases in which the traditional formulation of qualified privilege had been found to protect publications in the mass media:

“Although, as the foregoing account of the case law demonstrates, the common law has upheld defences of qualified privilege for publications to the world at large, common law courts have taken a restricted view of the occasions when a person has an interest or duty to publish material to the general public. Protection of reputation has generally been preferred to the right of the public to know. It is not surprising that successive generations of common law judges have been loath to extend the categories of qualified privilege to protect publications in the general media.”

[33] That reflects the orthodox view that, for the purposes of traditional qualified privilege, the law recognises an interest or duty to publish defamatory matter to the general public only in exceptional cases.[33]  The established exceptions to which McHugh J referred were cases in which the publication was made in response to attacks which had themselves been published to the general public.[34]  It was that restriction in the common law protection which was found by the High Court in Lange to necessitate the development of a new category of qualified privilege concerning political and governmental communications which protects publications to a mass audience, but subject to the new qualification in the case of publications which otherwise would not be protected by the traditional qualified privilege that the publication is “reasonable”.[35]  As Hayne J explained in Roberts v Bass, “the decision in Lange proceeded from two premises, first, that each member of the Australian community has an interest in disseminating and receiving information, opinion and arguments concerning government and political matters that affect the people of Australia but, second, that this interest did not suffice to found a claim to qualified privilege according to then understood principles.”[36]

[34] The defendant referred to the jury’s negative answer to the question whether the publication was actuated by malice and argued that the extent of the publication was relevant only to malice.  That the extent of a publication may be relevant to malice is not controversial.  But as the authorities cited in the preceding paragraphs make clear, at least in the case of information published to the public at large the extent of the publication is necessarily relevant to the anterior question whether the defamatory imputations were published on an occasion of privilege.[37]  That view is also consistent with passages in Stephens v West Australian Newspapers Ltd to which the defendant referred in argument.[38]

[35] Traditional qualified privilege might be established when, in the course of an election address a candidate makes a publication to electors about the fitness for office of an opposing candidate,[39] but the publication in this case was not alleged to have been made only to electors.  The evidence suggested that, consistently with the plaintiff’s allegation that the publication was made to the public at large, the publication was probably heard by many people who were not electors.  The question is whether this is an exceptional case in which the privilege subsisted even though the publication was broadcast to the public at large, electors and others alike, both in and a great distance beyond the ward in contest.  That question answers itself in circumstances in which no fact was alleged, admitted, proved, or found by the jury to support the existence of the claimed duty to any of the unidentified listeners who were not electors in that ward.  The defendant referred to the interest of those listeners who were electors in the broader area of the Rockhampton Regional Council, but there was no allegation, admission, evidence, or finding to support a claim that the publication was restricted to that area or that the defendant owed the claimed duty to publish to listeners who were not electors in that area.  It is therefore not necessary to consider the sufficiency of the interest of persons who were not electors in Division 1 but were electors in other wards of the Council.

[36] Traditional qualified privilege might also be established in particular circumstances where a publication relating to the record and suitability of a candidate for election to a council for a particular division is “directed to, and generally received by, a limited class of persons the electors in” [40] that Division even though the publication is also received by some others, but the publication in this case was not alleged to have been made generally to electors.  As I have mentioned, the amended defence did not allege any fact in support of a claim that the privilege subsisted even though the publication was not limited to persons to whom any alleged duty was owed as electors in Division 1 (for example, that the listeners were predominantly electors in Division 1 and that the radio broadcast was the only or most practicable way of communicating with the electors, or that the listeners were predominantly electors in the Rockhampton Regional Council and those listeners who were not electors in Division 1 possessed some different interest in hearing the publication).  Allegations of that kind were made in the plea of traditional qualified privilege which was held to be good in law in Stephens v West Australian Newspapers Ltd.[41]  The defendant relied upon that decision, but whether or not proof of facts of that kind might have been sufficient to establish traditional qualified privilege does not fall for decision where the claim was not put on that basis and there was no allegation, admission, evidence or finding of any fact relating to such a claim.

[37] There was nothing exceptional about the very sparse facts upon which the defendant’s claim for traditional qualified privilege was advanced in relation to this defamation made to the public at large.  The primary judge did not err in holding that the claimed privilege had not been established.

Disposition and proposed orders

[38] The application for leave to appeal should be granted because the proposed appeal was arguable and, if there was an error in the primary judge’s decision, it might have resulted in a substantial injustice to the defendant, but the appeal should be dismissed because the defendant did not establish any of the errors for which she contended.  The applicant should be ordered to pay the respondent’s costs of the application and the appeal.

[39] DAUBNEY J:  I agree with Fraser JA.