Cohen v Bennette [2009] HCATrans 291 (3 November 2009)

Last Updated: 9 November 2009

[2009] HCATrans 291

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S85 of 2009

B e t w e e n -

IAN COHEN

Applicant

and

JERRY LEE BENNETTE

Respondent

Application for special leave to appeal

HEYDON J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 3 NOVEMBER 2009, AT 12.38 PM

Copyright in the High Court of Australia

MR C.A. EVATT: I appear for the applicant with MS J.E. RAWLINGS and MR R.K.M. RASMUSSEN. (instructed by Carters Law Firm)

MR A.T.S. DAWSON: May it please your Honours, I appear for the respondent. (instructed by Banki Haddock Fiora Lawyers)

MR EVATT: Your Honours, the complaint in this application is centred at principles or criteria for common law qualified privilege laid down by the majority of the Court of Appeal by Mr Justice Ipp with whose reasons Mr Justice Campbell agreed, but also Mr Justice Tobias agreed in principle. These guidelines or principles for common law qualified privilege, some of which we say are erroneous, and without authority, nearly all of them are so strict that they emasculate the defence of common law qualified privilege, which after the decision of this Court of Appeal ceases virtually to exist.

It would appear to be a classic case of common law qualified privilege, your Honours. The respondent, Mr Bennette, had a controversial property development in Suffolk Park, a small town south of Byron Bay. The community – it was controversial. There were 500 objections and Mr Bill Mackay, a Greens supporter and secretary of the Local Progress Association, wrote a letter complaining about Mr Bennette and his development in the Byron Shire Echo. Mr Bennette then sued him for defamation. There were two fundraiser concerts held in April and May 1991 to support Mr Mackay’s defence to Mr Bennette’s defamation action against him.

BELL J: Mr Evatt, could I just ask this. When you say that it was a classic case for a conclusion of privilege, your submissions are set out at application book 131 in paragraphs 43 and 44, and over the page at application book 132, 45.

MR EVATT: Yes, your Honour.

BELL J: The matters that you put there you say make this a classic occasion of qualified privilege.

MR EVATT: Yes, the trial judge found it was common law qualified privilege.

BELL J: Yes, I understand that.

MR EVATT: It is a pretty classic case, we would submit, your Honour.

BELL J: What were the features that made it a classic case, bearing in mind the findings - - -

MR EVATT: I will deal with the findings of the Court of Appeal, but what makes it a classic case is that the audience, we say, all had an interest in the matter, and even Mr Justice Ipp found that the audience had an interest in what Mr Cohen was saying, although he said it was a diverse interest when it should have been an identical interest.

The fundraiser concerts were advertised in the local newspapers and by flyers as being held to support Mr Mackay’s defence to Mr Bennette’s defamation action. Admission price was advertised and charged so everyone who is there is paying to get in. They know that it is to support Mr Mackay and Mr Cohen, the applicant, addresses the audiences at both about the defamation action, and he calls Mr Bennette a bully and a thug over the way he brought the defamation claim against Mr Mackay. It is not as though he called him a paedophile, or a wife beater or something. Now, can I take your Honours to the principles about which we complain - - -

BELL J: Does it get more than that you complain of the statement of the principle at paragraph 25(d)(i) at application book 127?

MR EVATT: We complain about (i) on page 127, about (iv), about (ii), about (v) and about (vi), and we will give the reasons for all of those. So what is in issue is (i), (ii), (iv), (v) and (vi).

BELL J: Just directing your attention at the moment to (i).

MR EVATT: Yes.

BELL J: Justice Campbell, who concurred with the reasons of Justice Ipp with respect to qualified privilege, gave an explanation at application book 187 of the way in which the public interest impacts on common law privilege. Do you suggest that his Honour’s statement is in error?

MR EVATT: Mr Justice Campbell was in error, your Honour, in paragraph 206 on 187 when he said he agreed with the reasons of Mr Justice Ipp. What his Honour says in 207 to 208 adds to the confusion in this case - - -

BELL J: But do you accept that what is said in 207 and 208 - - -

MR EVATT: Paragraphs 207 and 208 are closer to the actual position, we say.

BELL J: Do you take issue with it?

MR EVATT: But 209 is not. It is confusing again.

BELL J: I see.

MR EVATT: Paragraphs 207 and 208 are pretty right, but it adds to the confusion. That is why this Court perhaps should intervene. Can I deal with (i), that is on 127, at the top of the page:

As a matter of public policy, it must be in the general interest of the whole community that the type of material in question be published -

Now, he is not saying that it is in the general interest of the whole community that there be a defence of common law qualified privilege. That is certainly the law, that it is in the interests of the whole community that there be such a defence. To clarify what his Honour meant, I have to take your Honours to page 136 of the application book. I cannot take your Honour to every reference, but at page 136 of the application book at paragraph 58, his Honour Mr Justice Ipp says that:

Issues such as Mr Mackay’s success or failure in the litigation involving local issues limited substantially to the Byron Bay area, have no bearing on the general welfare of society and the general interest of the whole community of New South Wales.

At 56 above, against line 10, Mr Justice Ipp has asked the rhetorical question:

How then is the welfare of society and the public interest advanced by Mr Cohen publishing material –

such as he published? Now, it makes it quite clear that Mr Justice Ipp is talking about - and he says the same thing in other paragraphs - 30, 57 and 62, which I will not read, but he has made it quite clear that what he is referring to is what he says at page 127, at the top:

As a matter of public policy, it must be in the general interest of the whole community that the type of material in question be published -

Mr Justice Ipp’s reasoning comes from the application book at page 120, your Honours. It is only a short passage, paragraph 10, towards the bottom of the page his Honour said that the old Toogood v Spyring case, which is 1834, your Honour:

gives the impression that common law qualified privilege is capable of having a very wide reach -

which it does. It is the oldest and most used of all defamation defences. But his Honour says this is not the case:

The application of this privilege is confined to strict limits . . . Dissatisfaction with the limitations of common law qualified privilege caused Parliament to enact s 22, thereby creating a statutory defence of qualified privilege –

That is now 30. What his Honour has done – and he refers to the decisions in subsequent pages such as Stephens v Western Australian Newspapers – is looked at the newspaper cases where the newspapers tried to run a defence of common law qualified privilege and the defence was rejected because in a newspaper with a wide-stream publication, the courts held - Justice Brennan in Stephens, Sir Frederick Jordan in Andreyevich - that in the newspaper then the communication must be of interest for the whole community.

Now, Mr Justice Ipp has taken that and applied it to ordinary common law qualified privilege and very few – of course 80 or 90 per cent of common law qualified privileges would fall foul of this, as did the applicant here, because most cases of common law qualified privilege aptly refers to them as “off the peg” categories, relate to employer/employee, business tenants, the new popular one now is suing the strata management committee, neighbours, relatives. They comprise the bulk of common law qualified privilege. If Mr Justice Ipp and the majority of the Court of Appeal is correct that is out.

Now, can I take your Honour to (iv). Ordinarily, a volunteered statement is privileged only where there is a pressing need to protect the interests of the defendant, or when the defendant has a duty to make the statement. It is seldom in common law qualified privilege that there is a pressing need to protect the interests, and in this case as most other cases of common law qualified privilege, there is not a duty, it is interest, the reciprocity of interest.

This passage comes from what was said by Justice McHugh in his dissenting judgment in Bashford, which both Mr Justice Ipp and Mr Justice Tobias have accepted as the law, but unfortunately, and because the judges found that we volunteered the statement, then we ran foul of guideline (iv). But if you look at what Justice McHugh, it is a misquote. That is at application book 170. Now 170 sets out most of the paragraphs of the dissenting judgment of Justice McHugh, and if you look at paragraph [73], opposite 30, the second line is the exact quote used by Mr Justice Ipp:

Ordinarily the occasion for making a volunteered statement will be privileged only where there is a pressing need -

But, with respect to his Honour, he missed the qualification put down by Justice McHugh. In the middle of that paragraph, Justice McHugh says:

The common law has generally perceived no advantage to society in giving qualified privilege to volunteered statements in the absence of a pre-existing reciprocity of interest between the defendant and the recipient.

Now that is what there was here. Mr Justice Ipp has overlooked or not put in his guideline (iv) on page 127 that this does not apply if there is an existing reciprocity of interest.

BELL J: But his Honour did not find an existing reciprocity of interest.

MR EVATT: He did.

BELL J: He did. Where?

MR EVATT: I will come to that next.

BELL J: All right.

MR EVATT: His Honour found a reciprocity of interest but then said it had to be a reciprocity of identical interest. Now, I start with - - -

BELL J: Can you just tell me where you are at?

MR EVATT: I am just going to leave page 127, I am still there, of the application book. I am looking at (v):

If a publication is made to a large audience, a claim of qualified privilege at common law will fail unless the members of the audience all have an interest -

Now, there is your reciprocity of interest. However, having laid down the guideline, Mr Justice Ipp did not follow it. Can I take your Honours to 138 of the application book, paragraph 66, down the bottom of the page. Mr Justice Ipp says it is likely that there be supporters at the meeting supporting Mr Mackay. Page 139, over the page, he said at the fundraiser, there might well be persons supporting Mr Bennette. Then he says at about line 10:

Persons who did not feel strongly either way might have attended the meetings for the purposes of informing themselves.

There is your reciprocity of interest of everyone there, those supporting Mackay, those supporting Bennette, those there to inform themselves.

BELL J: Mr Evatt, I am just looking for the passage where you say Justice Ipp found - - -

MR EVATT: That is it.

BELL J: That is it?

MR EVATT: That is it, where he divides the audience into three sections: supporters of Mackay, supporters of Bennette and those there to make up their own minds about the matter. But what his Honour said in line 20, he said:

the likelihood that everyone would have had an interest in supporting Mr Mackay is not a probable inference. I do not accept that all the members of the audiences had identical interests in being there -

Now this is new to common law that you have to have an identical interest. He found against the applicant because although he said, in effect, that everyone there had an interest, either supporting Bennette, supporting Mackay, or to find out the truth, because it was not a common interest in supporting Mr Mackay, they did not have an identical interest and therefore what we said was not a reciprocity of interest not covered by common law qualified privilege. Your Honour, that is not the law.

It is true that in many cases of common law qualified privilege there is a reciprocity of interest, talking to friends or employees at work. They might all agree that the boss is a terrible man, but when you have a larger audience, you are going to get some diversity. The trial judge, of course, found that most people there did have an interest in supporting Mr Mackay, but just taking what Mr Justice Ipp has said, he is going back to 127, (v). He has introduced the word “identical” in his judgment before “interest.”

Now, that has to be clarified and of course, Mr Justice Ipp, Mr Justice Tobias and Mr Justice Campbell, none of them mentioned that there was an advertised admission price to these meetings, which was quite important, we think. Where does that leave the common law, your Honour, for an ordinary case where someone comes into the lawyer’s office and says “Look, the manager of the strata units has written this letter about me to the other board members. It is defamatory and I want to sue.”

BELL J: It leaves the common law where it is, in relation to that, surely.

MR EVATT: You tell them that they have no action, but now you say that because the letter was not of interest to the whole of New South Wales, there was not a reciprocity of identical interest, in other words, every recipient did not agree with what the communicator said - - -

BELL J: Mr Evatt, presumably people reading Justice Ipp’s judgment would read it in context in the way that Justice Campbell, who agreed with it, did and who stated this issue at paragraph 207.

MR EVATT: I have read it in context, with respect, and I think that Mr Justice Campbell and Mr Justice Ipp are ad idem, except Mr Justice Campbell makes a qualification. One might say that Mr Justice Tobias agrees with the reasons of Mr Justice Ipp. He said so in a later judgment, your Honour. The next point is that Mr Justice Ipp - this is (vi) - puts us down as an “officious and interfering person”. He found at application book 137 that we had no relationship of principal and agent, or relationship of trust or confidence or even intimacy between Mr Cohen and Mr Mackay. He said that Cohen was not involved in the litigation, Mr Justice Tobias said the same thing, and therefore he had no interest. Mr Cohen was called on by Mr Mackay to speak and in his speech, Mr Cohen pointed out that he had known Mr Mackay since 1982 when they were Green campaigning against logging in the rainforest.

HEYDON J: I think that time has run out, Mr Evatt.

MR EVATT: My notes cover it, your Honour.

HEYDON J: The Court will adjourn for a short time to consider the future progress of this application.

AT 12.59 PM SHORT ADJOURNMENT

UPON RESUMING AT 1.01 PM:

HEYDON J: We need not trouble you, Mr Dawson.

Among other things, the applicant complains of the Court of Appeal’s alleged opinion that qualified privilege depends on establishing that the subject matter or the communication must be of interest to the whole community. If the Court of Appeal’s account of the law relating to common law qualified privilege is understood in the manner explained by Justice Campbell at [2009] NSWCA 60 at paragraphs 207 to 210, Justice Campbell understood his approach to be the same as that of Justice Ipp.

There are insufficient prospects of success in an appeal to justify a grant of special leave. In our opinion, Justice Campbell’s account is correct. In addition, what the applicant said on the occasion in question is very likely to be held to fall outside the occasion of qualified privilege for more than one reason. Accordingly, the application must be dismissed with costs.

AT 1.02 PM THE MATTER WAS CONCLUDED