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High Court of Australia Transcripts |
Last Updated: 7 April 2011
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S309 of 2010
B e t w e e n -
AMANDA CUSH
Appellant
and
MERYL LURLINE DILLON
Respondent
Office of the Registry
Sydney No S310 of 2010
B e t w e e n -
LESLIE FRANCIS BOLAND
Appellant
and
MERYL LURLINE DILLON
Respondent
FRENCH CJ
GUMMOW J
HAYNE J
HEYDON
J
CRENNAN J
KIEFEL J
BELL J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY, 7 APRIL 2011, AT 10.03 AM
Copyright in the High Court of Australia
__________________
MR T.A. ALEXIS, SC: If the Court pleases, I appear with my learned friend, MS P.M. SIBTAIN for the appellant in each of the two appeals. (instructed by Cole & Butler)
MR G.O’L. REYNOLDS, SC: May it please the Court, I appear for the respondent in both appeals with my learned friend, MS G.R. RUBAGOTTI. (instructed by Banki Haddock Fiora)
FRENCH CJ: Yes, Mr Alexis.
MR ALEXIS: Your Honours, the appeal concerns a conversation that occurred in a café in the main street of Moree in country New South Wales back on 8 April 2005, six years ago tomorrow. The conversation was between the respondent, Mrs Dillon, and a Mr James Croft who was then the chairman of the Border Rivers/Gwydir Catchment Management Authority and for convenience I will refer to that authority as the CMA and your Honours should understand that that is a statutory authority established under the Catchment Management Authorities Act (NSW).
Mrs Dillon, the respondent, was a director of that authority and she had been since May 2004. Mr Les Boland, one of the appellants, was also a director and had been since August 2004, and Ms Amanda Cush, the other appellant, was then the general manager of that authority and had held that position since about mid-2004.
In relation to that conversation, the jury returned answers to the questions that your Honours will find set out conveniently in appeal book 2 at 615 and 616 and could I take the Court to that. Before the jury were two matters complained of. The first matter is that the subject of question 1 on page 615 between lines 10 and 20 in respect of which, as your Honours see, the foreperson of the jury answered that question in the negative and what followed was the entry of a verdict on that matter in favour of the defendant, Ms Dillon. Question 2 was answered in the affirmative:
Has the plaintiff Leslie Boland established that on 8 April 2005, the defendant said to James Croft the following words or words substantially the same, the second matter complained of “It is common knowledge among people in the CMA that Les and Amanda are having an affair.”
Your Honours will then see from lines 40 and following on page 615 the imputations that the jury accepted, firstly, in respect on Mr Boland:
(a) That as a member of the board . . . Catchment Management Authority, he was acting unprofessionally by having an affair with the general manager of that organisation?
and, secondly:
(b) That he was unfaithful to his wife?
There was no issue below that at the time of publication Mr Boland was married. In respect of those imputations the jury found, as your Honours see in the next question, that each of those imputations were defamatory of Mr Boland. In relation to Ms Cush, your Honours will see on 616, from about line 15, the jury rejecting the first matter complained of as pleaded and in identical terms the second matter between lines 30 and 40 and, in respect of the imputations concerning Ms Cush, your Honours will see from line 50 on 616, the imputation:
(a) That as general manager of the Border Rivers Gwydir Catchment Management Authority, she was acting unprofessionally by having an affair with a member of the Board of that organisation?
Then over the page:
(b) That she was undermining the marriage of Leslie Francis Boland and his wife?
The jury answered the following questions to the effect that those imputations were defamatory of Ms Cush. The issue on this appeal is whether the defamatory imputations conveyed by the respondent to Mr Croft were published on an occasion of qualified privilege. Her Honour Justice Bergin who wrote the judgment for the court below, with whom Justice Allsop and Justice Tobias agreed, found that those defamatory imputations were published on such an occasion.
Your Honours will find the finding in that respect in the judgment of the Court of Appeal at page 659, but as your Honours go to that, could I ask your Honours to pause ever so briefly at page 636 which is the commencement of Justice Bergin’s judgment for the purpose of observing that in paragraph 6 of her Honour’s judgment, having identified the defamatory matter at line 20, her Honour defines that as the statement - your Honours see that in brackets - and then by way of contrast importantly we would wish to draw your Honours’ attention to what her Honour then says under the subject of background at the bottom of that page.
If your Honours pick up the last line at line 60 where her Honour refers to “the genesis of a rumour that the Respondents were having an affair” and her Honour there defines that as “the rumour”. That definition is significant when your Honours have regard to the terms of the findings of the Court at page 659 of the book. At paragraph 53 her Honour finds that:
the existence of the rumour that the Respondents were having an affair was relevant and sufficiently connected to the privileged occasion as to attract the defence of qualified privilege at common law.
Further, her Honour was satisfied:
that the trial judge fell into error in failing to find that the publication of the “rumour” –
as distinct from the statement, as her Honour defined it –
to Mr Croft was an occasion that attracted the defence of qualified privilege.
In our submission it is plain from the reasons that the reciprocal duty and interest that defined the occasion was the existence of the rumour. Not only does her Honour say so in paragraph 53 but if your Honours turn back a page the reasons really start at paragraph 49 on 657 but importantly, we would say, it becomes plain from paragraph 52 on page 658 about halfway through that paragraph, your Honours will see about line 50:
The rumour of the affair was intrinsically intertwined with the concerns the Appellant raised with Mr Croft about the nature of the relationship between members of the Board and staff members and the complaints about the grievance process. That a Regional Director of the Department had become aware of the rumour was a new dimension to its existence, elevating it to an importance that imposed a duty on the Appellant to convey its existence to the Chairperson. Equally the Chairperson had a reciprocal interest in receiving the information.
We interpolate there, information concerning the existence of the rumour. Then her Honour continues:
To allow the Chairperson to remain ignorant of the rumour when it had been raised by staff of the CMA and discussed between a Board Member and a Regional Director of a Department that had certain supervisory functions over the CMA would have been in breach of the Board member’s duty to inform the Chairperson of the information relevant to matters that were clearly to be the subject of investigation by the Department and possibly by ICAC.
Your Honours observe, of course, the repeated reference to the rumour and not the statement as her Honour defined it. So, in our submission, when one understands the reason for the finding it does, in our submission, overlook the fact that the respondent did not convey the existence of the rumour to Mr Croft. What she did was to publish the fact and convey the defamatory imputations. Therefore, any duty or interest founded on the existence of a rumour was not a duty that was engaged when the defamatory matter was published. So, in our submission, the Court fell into error by failing to define the occasion by reference to the defamatory imputations. Having put that to your Honours, can I step your Honours through the circumstances that led to the conversation and, importantly, the publication of the defamatory matter.
BELL J: Just before you do that, can I inquire about paragraph 61 on appeal book 662. Justice Bergin records that a submission had been put at trial relying on the publication of the fact that it was well known that the respondents were having an affair without qualification as being foreign to the occasion of the asserted privilege.
MR ALEXIS: Yes.
BELL J: She notes that no party in the Court of Appeal claimed error on the part of the trial judge for failing to deal with that matter and, indeed, when one turns to the notice of appeal in the Court of Appeal – at 626 there is the notice of appeal on one of the appeals – and that is supportive of her Honour’s summary of the way the matter appears to have been presented in that Court. Indeed, the second ground of appeal complains of error in the finding that the appellant spread the rumour based on hearsay evidence – that is the complaint about the conversation with Ms Chittenden.
MR ALEXIS: Yes.
BELL J: But what I am raising with you is that it seems as though this submission might be being fashioned in this Court rather differently to the way matters proceeded in the Court of Appeal.
MR ALEXIS: Your Honour, the submission concerning the publication of the defamatory matter being foreign to the occasion, or irrelevant to the occasion, or extraneous, was certainly a submission that was put to the Court of Appeal.
BELL J: Her Honour says:
No party in the appeals has claimed that the trial judge fell into error in failing to deal with the matter on the basis –
and when one turns to the notice of appeal, it does seem - - -
MR ALEXIS: Yes. Could I respond to your Honour’s question more helpfully?
BELL J: Yes.
MR ALEXIS: One of the difficulties in relation to the judgment of the primary judge is that his Honour did not come to a final position on qualified privilege at all. His Honour mooted, for want of a better expression, that it may or may not have been a privileged occasion but by reason of the finding that his Honour came to on malice, his Honour preferred to determine the case on that basis. So, therefore, there was no treatment of the relevance or foreign issue by the primary judge and it is to that, in our submission, that her Honour is there referring and particularly, where her Honour says at line 49 on page 662.
No party in the appeals has claimed that the trial judge fell into error in failing to deal with the matter on the basis that the Appellant had elevated the rumour to fact.
His Honour did not deal with that because of the way the matter was dealt with respect to malice. Now, could I deal with the circumstances and can I approach that subject in a chronological way, and could I start at page 637 of the appeal book. Your Honours see that in early 2005 a:
Mr Mills informed [the respondent] that he had a matter of grievance in relation to Ms Cush –
the general manager, and I am reading paragraph 12 of her Honour’s judgment at 637 –
and that he felt that his matter had not been dealt with impartially because he believed that the Respondents were having an affair. Also at around this time Mr O’Brien informed the Appellant that he had “some concerns about the CMA” and “some concerns about the relationship” between the Respondents that related to some issues about the Grievance Committee.
Then at paragraphs 13 and 14 on 638 her Honour deals with what came forward from a Mr Pitman, and your Honours see in paragraph 13 the reference to the “tea room” and then ultimately in paragraph 14 her Honour refers to Mr Pittman having some conversations with a Mr Hart and a Ms Bate who were from the Department, and then in the final sentence of 14 your Honours see:
Mr Pitman conveyed his knowledge of the rumour to [Ms Dillon] “some time around February 2005”.
Now I should say to your Honours that Ms Dillon’s evidence was that this information came to her in late 2004 or early 2005. The timing seems to be a matter in respect of which our learned friends have taken issue in the submissions. It does not really matter, in our respectful submission, because the evidence demonstrates that the respondent did nothing with the information after she had received it, and that is demonstrated by the following material.
If I can take your Honours now to page 646 of the book where her Honour sets out evidence that the respondent gave on that subject matter, and if your Honours could look in particular on 646 from line 50 where Ms Dillon is confirming that she:
didn’t believe the accusation about the existence of an affair, that those three gentlemen told you of in late 2004 . . .
Then your Honours see the suggestion at the bottom of 646:
you sat on the information that those three gentlemen had said to you about the existence of an affair for about two to three months and spoke for the first time about that subject matter to Mr Hart –
who is the regional director from the Department –
in late March or early April 2005.
Then your Honours see the question is put again, and your Honours see the answer:
Then if we could pass over the next couple of questions and answers and at line 50 the subject of feeling no sense of duty or obligation is raised again and then your Honours see at the top of the next page, it is made crystal clear, in our submission, that during the intervening months the last thing that Ms Dillon would have done was to raise allegations made by the staff members when she had seen no evidence and did not believe the truth of it and she accepts that proposition.
Our learned friends rely on the content of what was conveyed by the three staff members. That is important, of course, but in our submission, it is of little significance ultimately when coming to scrutinise the circumstances of publication, because, in a sense, it was old news. But more importantly the respondent had done nothing in terms of conveying its existence to the chairman until 8 April 2005.
The next event of significance, your Honours, is the telephone conversation that occurred between Randall Hart who was the regional director of the Department of Infrastructure, Planning and Natural Resources, and he was based in Tamworth, and Ms Dillon. Could I just briefly deal with the question of timing? Her Honour at page 639 of the judgment at line 1 puts that conversation as occurring 30 March 2005. His Honour the primary judge puts the conversation as occurring in late March 2005 and that is at page 648 of the judgment, paragraph 38. I do not take your Honours to it.
Mr Hart actually gave evidence on this question of timing. His evidence was that it occurred on or about 30 March and the transcript reference for that is appeal book 1 page 326, line 45. Then there is the memorandum that Mr Hart prepared which I will come to and as your Honours will see that is dated 1 April 2005. Now, what does one get out of that? Not a lot, in our submission, because whether the conversation with Mr Hart occurred before or after some emails that were passed between Mr Croft, the chairman, and Ms Dillon, is of no particular consequence because what is plain is that at the date of publication, which was on 8 April, Ms Dillon had the conversation with Mr Hart and she had exchanged these emails, that I will come to, with Mr Croft.
The conversation with Mr Hart is set out on page 648 of the book and this is in the part of her Honour’s judgment where her Honour quotes extensively from the judgment of the primary judge and your Honours see that from about line 25 we have the evidence that was given before the primary judge on the conversation with Mr Hart. She was asked in-chief what is her best recollection and she responded this way:
He commenced the conversation by saying, “Hello, Meryl. How are you? This is Randall Hart here. I’m ringing you because I have some serious maters relating to the CMA that I need to discuss.” He said, “I’m ringing you because you’re the only one I can rely on to give a straight answer.” He said, “I have been talking to some people – more senior people in the department in Sydney and the union.” He said that he was raising the matters with me because they involved some of the ex-Department of Infrastructure, Planning and Natural Resource staff members and that some of his staff – also some of his staff in Tamworth, I think. He said, “Do you have any recollections of the trip to Tweed Heads?” He asked me if – no, he actually stated that there had been some irregularities in the vouchers for that trip, presented by Amanda Cush. He asked me if I was aware of how Ms Cush [travelled] to Tweed Heads.”
The trial judge and her Honour did not extract the whole conversation and there are a number of elements of the conversation that are significant and, so because of that could I ask your Honours to go to her evidence at page 201 of the first appeal book. If your Honours have page 210, your Honours will see from line 25 to 40 is the passage that I have just read out of the judgment and then the evidence continued on page 211. At about line 10, Ms Dillon said:
I told him I wasn’t really sure –
That is the answer to how Ms Cush travelled to Tweed Heads.
but I believe that she had travelled in a vehicle that belonged to the CMA with Ashley Pitman.
Then there is more detail concerning the issue of the trip to Tweed Heads that I will not take time on. Then the conversation turns to other matters and your Honours will pick that up on 211 from about lines 35 and following, particularly line 40. The question:
Were there any other subjects discussed, apart from this Tweed Heads issue?
There is reference to a person by the name of Lyn Cullinane and he said:
“Do you know anything about the Aboriginal Identified Position that was offered to Lyn Cullinane whereby it was asserted that the position had been offered and then withdrawn following discussions at the board?”
She told him:
No, I didn’t.
Then over the page:
Q. Was there another subject discussed?
A. I raised some issues with Mr Hart that arose out of that – was the fact that I had felt uncomfortable discussing personal staff at the board meetings, and I also raised with him the fact that there had been a directive given to the general manager that she was not to employ any further ex-Department of Infrastructure, Planning and Natural Resources personnel.
Q. Was that the extent of the discussion or was there another subject that was discussed?
She responds by the reference to the report of matters to ICAC. Then your Honours see the question:
Was there any discussion about a relationship?
A. Yes, there was. He said that the reason that he was asking many of these questions –
and your Honours need to appreciate that this was a matter very much in issue. We called Mr Hart in reply who denied that he had any concern about any relationship and his Honour the primary judge accepted his denial and I will take your Honours to the finding in a moment. But here Ms Dillon is saying at line 25:
he said that there are questions being asked about the relationship between the board and the general manager and the general manager and a particular board member.
Then just passing over the next couple of questions and answers at line 40 and following, your Honours see the question:
Q. Did you have any understanding of the particular board member to whom he referred?
A. When I was asked the question, I had, in the back of my mind, the comments that had been made by the staff members and the little throw away line that had been given by Michelle Chittenden, and I responded that I’d heard the rumours but I didn’t have any evidence and I didn’t believe it was occurring.
Q. Did Mr Hart identify a particular board member?
A. Not to my recollection.
So that is her version of the conversation with Mr Hart and plainly enough she is there telling him that she did not have any evidence in relation to the rumour and did not believe it was occurring. Then if I could just draw attention to one other passage of significance on page 213 and your Honours see at about line 45 the question:
Q. Does that exhaust your recollection . . .
A. I recall him making comments that it was a matter of concern. I recall him making a statement at some time during the meeting that he had been discussing it with the director-general –
and then “it” is defined in the next question and her answer is:
A. The issues that he had raised with me.
So there can be no doubt, in our submission, that her evidence in relation to this conversation put the issue of concern or the person asking the question as Mr Hart and no one else.
FRENCH CJ: Can I just ask.....background is Ms Dillon, as the general manager of the authority, was she an appointee, an officeholder of the government service within the Department who was, as it were, allocated to work for the board or a staff member employed by the board?
MR ALEXIS: Is your Honour referring to Ms Cush or Ms Dillon? Your Honour said Ms Dillon as the general manager - - -
FRENCH CJ: I am sorry, the general manager, I am talking - - -
MR ALEXIS: But your Honour meant Ms Cush and she was an employee of the authority.
FRENCH CJ: Thank you.
MR ALEXIS: Could I take your Honours back to page 649 of the second appeal book where her Honour sets out from the judgment of the primary judge, the primary judge’s consideration of the conversation between Ms Dillon and Mr Hart and if your Honours have – and if I may follow the paragraph numbering of the primary judge’s judgment as extracted on 649 - have paragraph 35 your Honours will see that the primary judge referred to the conversation:
Following the conversation with Mr Hart, according to Mrs Dillon, she organised a meeting with Mr Croft.
I will take your Honours to some evidence which demonstrates that the initiation of the meeting came from Mrs Dillon and certainly not from Mr Croft. His Honour then goes on to say:
He was the Chairman of the Board. Mrs Dillon’s evidence is that this meeting was held as a result of the discussion with Mr Hart and its contents were a product of that discussion.
His Honour then sets out the defamatory matter conveyed at the conversation in April with Mr Croft, and then in paragraph 36 on page 650 he says:
Mrs Dillon says she raised the matter in essence as a result of the concerns earlier expressed by Mr Hart. In other words, she says that she saw it as part of her duty to bring the matter to the attention of the Chairman of the Board, a concern which was strengthened by the discussions she had had with the staff members, in particular because of Mr Boland’s presence on the Grievance Committee.
Then your Honours see the reference to qualified privilege, and then importantly, your Honours have paragraph 37 of the primary judge’s judgment:
It is clear from the just quoted passage of evidence that Mrs Dillon alleges she conveyed the defamatory publication to Mr Croft as a result of her conversation with Mr Hart. This is probably the main point of credit in relation to Mrs Dillon.
His Honour observes.
Mr Hart, although conceding the matter was discussed in his conversation with her denied he had raised it as a matter of concern. Were the contest between the oral evidence of Mr Hart and Mrs Dillon alone I would have preferred Mrs Dillon’s evidence. Mr Hart only came to consider the matter in about November 2007 and, as conceded by him, his memory of the details of the events was vague. I also thought his manner of giving evidence was somewhat casual and I noted that from time to time he laughed about matters which he presumably thought were trivial. His version does, however, have support in Exhibit H which is a confidential memorandum he sent to the Director General . . . on 4 April 2005, following his conversation with Mrs Dillon. The matters of concern raised there do not include the alleged affair.
His Honour then describes it as “a contemporaneous note” and then finds to this effect:
I am not satisfied that Mr Hart raised the affair as a matter of concern. As a result I am not satisfied that Mrs Dillon disclosed the rumour to Mr Croft as a result of her conversation with Mr Hart. That is not to say that she did not nevertheless believe it was her duty to tell Mr Croft about the rumour, simply that she did not do so as a consequence of speaking to Hart.
Now that finding, which in our submission is an important finding, is one that went unchallenged in the Court of Appeal and so the evidence that she gave to the primary judge on purpose was found against her. The point arising of course is that on Ms Dillon evidence she advanced no other reason for speaking to Mr Croft about the affair on 8 April 2005.
I referred a moment ago to some emails that passed between Mr Croft and Ms Dillon and our learned friend seeks to squeeze a request for information out of them. I will take your Honours to them after I take your Honours to the memorandum from Mr Hart, but our submission is that those emails could not, on any view, constitute a request for information by Mr Croft.
Could I go to Mr Hart’s memorandum that your Honours will find at page 394 of the second appeal book? Could I start at 394 just to indicate that by reference to the cover sheet under which the memorandum was sent by facsimile to the Director-General - it was sent to her on 4 April, your Honours see the facsimile imprint across the top of the page. The memorandum starts on the next page, a two-page memorandum, and if I could just step your Honours through it as briefly as I can? Firstly, your Honours see on 395, line 10, the issues:
Activities of the Border Rivers – Gwydir Catchment Management Authority (CMA) and the General Manager, Amanda Cush.
Then in terms of background:
CMA and DIPNR staff have made allegations, to the PSA –
the Public Service Association –
and to me, concerning alleged fraudulent activities undertaken by Amanda Cush.
2.2 A Border Rivers – Gwydir CMA Board member has also made an allegation, to me, of undocumented and inappropriate CMA Board processes conducted at Board meetings.
Now, that is a clear reference to Ms Dillon, it is a clear reference to the conversation, and the content of that complaint is set out on the adjacent page under paragraph 4.3 “Board Processes”. I will come back to that. Your Honours see “Current Action” set out in the next paragraph, and there Mr Hart says that he:
was originally reluctant to interfere, but due to the seriousness of the allegations, have undertaken a confidential preliminary local investigation of the allegations . . . utilising her financial knowledge and contacts, has compiled the documentation.
Then the content of those documents is set out in 3.3. Then if I can come to the “Comments” section in paragraph 4, and one sees that in terms of travel allowance there was an issue about Ms Cush claiming a travel allowance amounting to over $500 “on two occasions when all expenses,” so it said, including hotel and the like were paid for by the Authority. Then in 4.2 there is a reference to the Tweed Heads forum. It is described as:
a facilitated strategic planning forum at Tweed Heads –
and the expenses relating to that forum are set out –
Salary and travel costs for staff and Board members and travel expenditure incurred by the facilitator are not included, although the CMA covered all of these costs.
There is further commentary on that at the top of the next page. Then in relation to board processes, Mr Hart records there that the:
Board member has been in contact with me and advised that the Board has agreed not to employ any DIPNR staff in the future. The Board member further stated that the Board lacks proper corporate governance procedures, engages in “character assassinations” of current CMA (former DIPNR) staff and does not document and record those comments.
Secondly, he records that:
The Board member will bring the governance matters to the attention of the Minister and will cooperate with any investigation.
The reference to Ms Dillon brining governance matters to the attention of the Minister does not seem to have been referred to in the conversation that Ms Dillon gave to the primary judge when she was relaying what was said between her and Mr Hart. Then there is a reference in the next paragraph to the appointment of Lyn Cullinane that your Honours recall reference to in the transcript in relation to the Aboriginal identified position, and then in relation to other anomalies there is reference to Ms Cush’s home phone and broadband rental charges, use of private vehicle and matters of that type. There is a reference to staff having lodged some grievances, “Former staff member Rodney O’Brien” has resigned and then your Honours see that recommendation that:
these matters be either referred to Internal Audit or Human Resources for further independent investigation, as a supplement to any current investigation.
Your Honours now appreciate of course why the primary judge expressed the view that his Honour did, that Mr Hart’s denial that he had raised the alleged affair as a concern is supported by his contemporaneous memorandum.
The other matter that is of some importance when scrutinising the circumstances, before I come to these emails, is Ms Dillon’s knowledge at the time that she spoke to Mr Croft about departmental investigations that were current at that point in time. One gets the flavour of it from Mr Hart’s memorandum, but the question is what Ms Dillon understood about that, and could I briefly take your Honours to her very brief evidence on this issue at page 251 of the transcript in the first appeal book? From about line 25 your Honours will see that it was put to her that:
You came to learn, didn’t you, that one of the complaints that was being made against Ms Cush related to the selection process and some misconduct concerning the Aboriginal Identified Position?
A. I [learnt] of that, I think, in about the end of March April.
Q. By then you knew, didn’t you, that the department had appointed an independent investigator to investigate the complaints being made against Ms Cush?
A. Yes.
Q. By then you knew, didn’t you, that by that stage, Ms Cush had been written to by the department about the investigation that was about to commence?
A. Yes.
Q. She was written to about each of the allegations and she was asked to respond?
A. I think that’s correct.
So that is the context of what was occurring before the communication in the café with Mr Croft. There is some other important communications before I come to that conversation and can I come to the emails, and your Honours will find those in the second appeal book at page 389, and if we could start on 389 at the point between lines 30 and 40, your Honours see “Original Message” and we have the email from Mr Croft to the then board members of the CMA. Ms Dillon is the first of the board members referred to. It is copied, just above line 40, to Ms Cush, transmitted on 31 March 2005 at 4.07. Subject matter “Out of Session Business/ Update” and your Honour will see that Mr Croft says to all:
Please find attached a Business Paper for your early response.
The business paper is on page 391, and if I could go to that briefly please, your Honours will see that the issue is a statement of support for the general manager. There is reference in the background to a number of CMAs being tested on staff-related matters in the industrial relations area and then about three paragraphs down:
In order to manage the risk to our Board and management Amanda has requested that we provide a written statement of support for the role and responsibilities attached to the GM position.
Other CMA Boards have provided similar support to their GM and as this matter is both important and urgent it necessarily requires decision out of session -
that is to say out of the course of an ordinary board meeting. Your Honours see the terms of the recommendation. If I can go back to the email, your Honours will see the response from Ms Dillon at about line 30 on page 389:
What is the urgency of having an out of session business paper in relation to this issue?
And, then, Mr Croft responds at the top of page 389 – 1 April 2005, 7:51 – “Out of Session Business/Update” -
Hi Meryl
Tried to phone
The urgency is that Amanda may have to respond to an accusation prior to the next meeting and needs our support to be prepared for that eventuality -
That communication about Ms Cush having to respond to an accusation was conveyed to Ms Dillon. There is no evidence that that was conveyed to each board member and, to that extent, I need to acknowledge an error in our written submissions that would seem to bring all these points together. But it is that communication that on the evidence was conveyed only to Ms Dillon.
GUMMOW J: Whereabouts in your submissions?
MR ALEXIS: Our learned friend points it out but it is in our written submissions in paragraph 14. It is the reference there to the chair circulating an email to all directors seeking urgent support for Ms Cush as general manager. That is clearly correct in our submission, but it is the next part “as she” and that reason was conveyed to Ms Dillon on the evidence, not conveyed to the other board members.
GUMMOW J: So how do we alter what you have written?
MR ALEXIS: I am sorry.
GUMMOW J: We need to know how you are altering your written submissions.
MR ALEXIS: Yes, your Honour.
GUMMOW J: What is the new text?
MR ALEXIS: Your Honours can put a full stop after the word “General Manager” and delete the rest of that sentence.
GUMMOW J: Thank you.
FRENCH CJ: Just returning for a moment to the question I put to you earlier, I notice that section 6(4) of the Catchment Management Authorities Act says that an authority cannot “employ any staff” but there is a note that:
Staff may be employed under Chapter 1A of the Public Sector Employment and Management Act 2002 –
I think, and the general manager is defined by reference to that.
MR ALEXIS: Yes, your Honour. Yes. Now, in relation to these emails, could I ask your Honours to go to her evidence at page 257 in appeal book 1? At the bottom of page 256, your Honours will see that the email that I have been referring to was the subject of questions and then at the top of 257 your Honours see the suggestion that she received the email from Mr Croft together with his out of session business paper before a conversation with Mr Hart:
I believe, when I put the timings together and the period at which the conversations took place, they’re in about the same, time but I couldn’t say that I received this before I spoke to Mr Hart or after I spoke to Mr Hart. I don’t really recall.
Then what follows is her evidence concerning what she did as a result of it and could I ask your Honours to come to page 258 of the book where at line 30 Ms Dillon was shown an email from a Dr Crouch who was one of the board members and at line 30 your Honours see that in the question reference is made to Dr Crouch being:
quick off the mark to respond to Mr Croft’s request. You were one of the many board member recipients of that email. Do you see that?
A. Yes, I see that.
Your Honours see the date and time of response “31 March 2005 at 8.58”.
Q. Before you sent your email to Mr Croft raising the question about the urgency, you’d already received the email from Dr Crouch expressing absolute support for Ms Cush?
She raises then a question about whether she opened it or not and then at line 45:
Q. In any event, Mrs Dillon, by the time you received the email from Mr Croft explaining the urgency of the situation, you either knew at the time or around that time that Dr Crouch had written to Mr Croft saying that Ms Cush was doing a competent job and that she, Ms Cush, had his complete support.
A. That’s right.
Q. You’d also read that he had said to Mr Croft, “If you require a mover, seconder, and a strong yes vote, you will get them from me.”
A. Yes.
Then over the page, this was put to her:
Q. You didn’t send any communication to Mr Croft expressing support for the general manager at this time, did you?
A. No -
and then she refers to the reference in the email to the likelihood of a conversation over the telephone. Then it was put:
Q. You know there was an in-session meeting of the board on 15 April 2005 in Goondiwindi, don’t you?
She refers to the minutes. She tells us there that she was actually in Darwin on CMA business, did not attend the meeting and then it is put to her that at no time between the receipt of the emails and the board meeting did she express any support at all for the general manager. Ultimately, says at line 32:
A. I don’t recall - - -
GUMMOW J: What is the point of taking us page after page through this material, Mr Alexis?
MR ALEXIS: The point, your Honour, is to demonstrate that there was no apparent purpose of Ms Dillon conveying the defamatory matter to Mr Croft that would be in discharge of a duty or in satisfaction of an interest. Now, Mr Croft in his evidence before the jury, if I could take your Honours very briefly to that, at page 446, line 15 there is reference to the board passing a resolution of confidence in April 2005. That was when the complaints against Ms Cush first surfaced, that is correct. Then just after line 40 your Honours will see:
Q. Because the board by a majority had endorsed Ms Cush’s role as the general manager back in April 2005, had it not?
A. Yes.
Then a very quick reference over the page, 447 at line 10:
Q. Ms Dillon was the only person on the board who didn’t join in the endorsement of the general manager back in April?
A. Yes.
The submission I will be coming to is that, when looked at objectively, the only purpose that was apparent as to explain why Ms Dillon conveyed the defamatory matter to Mr Croft was to render untenable board support for Ms Cush that was being sought at the time and to also render Mr Boland’s position in relation to the provision of that support and the passing of such a resolution of support similarly untenable.
Now, could I come to the conversation with Mr Croft? That is set out in part in Justice Bergin’s judgment at page 646 but, in our submission, it does overlook some important context so could I ask your Honours to go to book 1 at page 216? Firstly, could we note on 216 that Ms Dillon says in-chief at about line 23 that she contacted Mr Croft to initiate the meeting.
I contacted him by telephone.
She said in the next answer:
I need to speak to you about some issues of concern to the CMA board. Would it be possible for us to have a face-to-face meeting on this matter?
That is what led then to the meeting and over on 217, there is reference to the café at about line 27, and then the content of the conversation is recounted from about line 38:
A. I said to James that I had been contacted by a senior member of the department and they are raising some concerns about the CMA, some serious concerns about the CMA. I said to him they were asking questions about the Aboriginal position and whether or not the board had intervened in the appointment. I raised with him the fact that they were asking questions about the relationship between the board and the general manager and a particular board member and the general manager.
Q. Did you identify anyone by name to the best of your recollection?
A. To the best of my recollection, I didn’t.
Q. Did you use the word “affair” . . .
A. Not at – I don’t have a recollection of having used that word.
Then over the page, she maintains at 218, line 10 her recollection that:
that was the conversation that you had concerning the relationship between Mr Boland and Ms Cush?
Then just passing over the reference to the jury, because I will come back to that, at line 35 and following, she says that she accepts the jury’s finding. No great revelation in that we would say. But then importantly there is the next question and answer:
Q. Why did you make the comments you made to Mr Croft about the relationship that you considered was an affair?
A. There are several reasons. One was the fact that he was the chairman of the board. This matter was of concern in relation to such issues of conflicts of interest, or perceived conflicts of interest.
Then she elaborates on that over the page, 219, from about lines 22 and following:
Q. Were there any other reasons prompting you to make this reference to the relationship to Mr Croft . . .
A. Accusations of this type can be very damaging to a board and they can be damaging to individuals.
So your Honours see there in clear terms, we would say, her apparent reason for conveying what she did to Mr Croft. That is based, of course, on her version of the conversation which she confirmed was her recollection of the conversation, a conversation the jury rejected.
FRENCH CJ: What error on the part of the Court of Appeal is this directed to?
MR ALEXIS: It is directed to the error concerning the occasion that was defined, namely, to convey the existence of the rumour, not being an occasion that was engaged by conveying the fact. What this demonstrates is that on her evidence her intention, or her purpose, was to convey the existence of the rumour, or as she puts it in the transcript I have just taken the Court to, the existence of the accusation, and that is not what was published, what was published was the fact. Now, could I ask your Honours to go ever so briefly to her evidence before the jury - - -
BELL J: All of this goes to the question of the identification of the occasion for the purposes of qualified privilege.
MR ALEXIS: Yes, but importantly within that, your Honour, discerning the purpose of the publication and her evidence was, as your Honours now know, that she was conveying in effect Mr Hart’s message of questions being asked. The primary judge found that against her, so that purpose was taken away.
BELL J: I am just seeking to understand the error in terms of the analysis of qualified privilege. You say that this goes to the identification of whether or not the comments were made on an occasion that attracted privilege?
MR ALEXIS: Yes, yes.
BELL J: All right.
MR ALEXIS: If the duty or interest that was said to be discharged or satisfied is the bringing of the existence of the rumour to the chairman then that duty and that interest was not engaged by Ms Dillon because that is not what she did; she did not convey the existence of the rumour, she conveyed the fact of the affair and that it was common knowledge.
HAYNE J: Well, that is a point you have made more than once.
MR ALEXIS: It is.
HAYNE J: What exactly is the purpose that you have in taking us line by line through the evidence? Is it simply to buttress that point?
MR ALEXIS: To demonstrate that the purpose that Ms Dillon gave evidence of is not a purpose that satisfied the reciprocal duty and interest to convey the existence of the rumour. She says that she conveyed it to Mr Croft to bring his attention to the existence of the rumour, but she did not convey to him the existence of the rumour. She said it was common knowledge that they were having an affair and so there is a complete disconnection, in our submission, between a duty and an interest that may have been available to her and an occasion available to her of qualified privilege that was not used for the purpose of the publication.
FRENCH CJ: Well your focus must be on 52, 53 and 54 of the Court of Appeal judgment at 658 and 659, must it not?
MR ALEXIS: Yes.
FRENCH CJ: It is really against that background that any of this has any significant, and I just wonder how much more it - - -
MR ALEXIS: Well, your Honours, I do not have very much more at all, and what I wish to do is to take your Honour to the evidence that was given before the jury on this very subject matter and then move to put our propositions. So could I ask your Honours to go, please, to page 503 of the transcript in the second appeal book. First of all, could I just ask your Honours to note her evidence at 503, lines 12 to 25. The second matter complained of was put to her:
Q. Did you ever say [that] . . .
A. No.
Q. Did you ever say anything like that to Mr Croft about Les and Amanda having an affair or a relationship?
A. No.
Then your Honours have her version of the conversation with Mr Croft as was given to the jury on page 504 of the transcript from lines 30 to 50. She was asked at line 45 whether that was the totality of the conversation, and your Honours see her response, and then at line 55 she says that the conversation went for about half an hour, which does rather indicate, in our submission, that the fundamental purpose was to discuss the matters of complaint although, for reasons I will come to, she did not disclose that she had made a complaint, but the subject matter of what is in Mr Hart’s memorandum.
Now, your Honours might think that it is an odd proposition for Ms Dillon to assert a reciprocal duty or interest for a publication she denied making and that is the proposition that arises out of her denial that your Honours have been taken to. What follows in our submission is that whatever duty Ms Dillon felt that she acted under, or on when she spoke to Mr Croft, must have been founded on the existence of the rumour and it was not a duty that was engaged when she published the defamatory imputations to him and that is made clear by the evidence that she gave at 504, lines 45 to 50, and it is also made clear by the evidence she gave at page 513 of the book at line 25, where she was directly asked about the purpose of speaking to the chairman, and her answer was in these terms:
They were not my concerns as such, they were matters of concern that had been raised with me -
to similar effect at 514 at lines 25 to 35. In her later evidence, and I am coming rapidly to the end of the transcript references, may I say to your Honours, but in her later evidence before Judge Elkaim at 294 of appeal book 1, particularly at lines 35 to 45 where in relation to the conversation, she says:
A. No, but it goes to more than that. It’s about the accusations of an affair.
Then over on page 295, the question of duty is the subject of examination and at lines 45 to 55 she says, in particular:
I believed that the chairperson had a right to know what was being said about the board and about individual board members.
Over page it is to similar effect. The first answer to the question at the top of 296:
A. I believe that he had the right to know whatever was being said . . .
A. It can be very corrosive to a board for those kinds of accusations to be made and for that sort of information to be spread about it.
Q. If that’s so, why then didn’t you tell Mr Croft, perhaps in the same breath, “James, I have no evidence of this and I don’t believe that it’s true”?
A. I do not know.
In our submission, critical to defining the existence of the privileged occasion is that it be defined by reference to the imputations. Could I draw attention to two particular passages in Bashford that I wish to take the Court to - Bashford v Information Australia Newsletters Pty Ltd [2004] HCA 5; 218 CLR 366. Firstly, could I ask your Honours to go to what Justice Gummow said at paragraph 135 on page 415 and passing over his Honour’s reference to what the primary judge and the Court of Appeal did, which your Honour expressed is an approach that requires caution, your Honour then said:
The defence of qualified privilege is a plea in confession and, as such, is predicated upon the existence of a defamatory imputation to which the privilege attaches. To speak of qualified privilege attaching to a non-defamatory statement is to ignore this fundamental characteristic. It follows that questions of relevance, in the sense in which that term was used by the judges below, will ordinarily only arise where two or more defamatory imputations are published on a single privileged occasion. In such circumstances, it will be necessary to determine whether each imputation falls within the umbrella of the applicable privilege or whether one of the imputations is not relevant and, therefore, not covered by the defence. In the present case, only one defamatory imputation has been found to have been conveyed. It is therefore necessary to consider whether that imputation was made on an occasion giving rise to a defence of qualified privilege arising out of a reciprocal duty or interest.
Could I note without reading the reference in paragraph 137 to Starkie on Slander and particularly the reference to communications made in discharge of the duty and the reference also in that respect to Baron Parke in Toogood v Spyring. In our submission, what needs to be considered is whether that imputation was made on an occasion arising out of a reciprocal duty or interest whether the defamatory matter that was uttered by Ms Dillon was made as a communication to discharge a duty or whether it was uttered to satisfy a relevant interest. It is to that issue that, in our submission, the Court of Appeal fell into error because they did not define the occasion of privilege by reference to the imputations. It was defined by reference to the rumour.
KIEFEL J: Are you saying that no occasion arose?
MR ALEXIS: In relation to the defamatory imputations? No.
BELL J: Can I just take you back to a passage in the evidence that you took us to, at transcript 218 in the appeal book. Ms Dillon accepted the jury’s verdict, that is, she acknowledged that she accepted that the factual finding that what had been said were words to the effect “It’s common knowledge amongst people in the CMA that Les and Amanda are having an affair”. Now, with reference to that acceptance at line 38 she offers as her reasons for making the comments that she had made to Mr Croft, the fact that he was the chairman of the board and that the matter was one of concern.
I just want to understand your argument. It seems to me there one has Ms Dillon saying, “Well, I accept that this is the jury’s finding that these words were said”. She is then giving an answer as to her reason for saying those words. This is in a context where, I think, elsewhere she says she does not remember saying those words. But is your submission that it is not open to her, as it were, to say, on the one hand, “I do not believe I said those words. Accepting that it has been found that I did say those words, this is the reason for my saying words to Mr Croft which necessarily accepted the words that were pleaded”.
MR ALEXIS: Yes. Her evidence on purpose was directed to her version or her recollection of what was conveyed to Mr Croft.
BELL J: At line 38 on page 218 it seems she is saying in answer to a question that is expressed in this way:
Q. Why did you make the comments you made to Mr Croft about the relationship that you considered was an affair?
A. There are several reasons. One was the fact that he was the chairman of the board.
MR ALEXIS: Yes, but, your Honour, in our submission, that question with the language employed in it makes it clear that she is being referred to the purpose of what she conveyed to Mr Croft as she recalled it and, your Honour, could I draw particular attention to the reference to “the relationship that you can considered was an affair” and her answer related to her version which did not disclose the existence of an affair, or did it disclose the parties that were alleged to be part of the affair because her version of course was she referred to the general manager, and that clearly enough was a reference to Ms Cush, but the identity of the board member was at large, and there were a number of board members who, theoretically at least, could have fallen into the category.
So her version was that there was no identification of Mr Boland and no identification of the relationship being an affair, and so when the question at 218, line 36 was put, it was put to explain her purpose of saying her comments in relation to “the relationship that you considered was an affair”, and that is the difficultly, in our respectful submission, with Ms Dillon trying to construct a duty based on the existence of an accusation or a rumour because that is the very thing that she did not convey according to the jury’s findings.
HAYNE J: Does that argument base itself on an either/or analysis? If it does, how does it take account of the evidence given at 217 to 218 where the witness says that, “To my recollection I did not say these words, I do not recall saying these words”, et cetera, leaving open the possibility that they were said? She accepts the finding of the jury that they were said.
MR ALEXIS: Your Honours, that is why I took your Honours to Ms Dillon’s 7A evidence.
HAYNE J: I understand that you can go through and you can parse the evidence as closely as you like, Mr Alexis, but is it not the overall weight of her evidence that “My recollection of what I said was X, I do not recall saying why, the jury has found I said why. That is not my recollection”. From that you create a polar universe where it is either one or the other. How does that sit with witnesses long after the event attempting to give their best recollection of a conversation that occurred?
MR ALEXIS: Yes, well, your Honour, I need to respond to your Honour’s question by putting this submission based on her 7A evidence at 503 which denied the matter complained of, or anything like it. She then went on to say at page 520 of the transcript, lines 25 and 30, that her recollection of the conversation were her exact words, and perhaps I should, in light of your Honour’s question, go to that. At 520, lines 15 and following, it was specifically put to her:
You referred to Mr Boland by name, didn’t you?
A. No.
Q. Are you sure about that?
A. Yes.
This is before the jury where publication was very much in issue –
Q. You referred to a relationship between a board member and the general manager, didn’t you?
A. Yes.
Q. What sort of relationship did you refer to?
A. I repeat, they were my exact words, that I mentioned that the Department had expressed concerns in relation to those matters and that the matter that you’re now talking about is that they had expressed concerns about the relationship between the board and the general manager and a particular board member and the general manager.
Now, in our submission, in light of that evidence which was unequivocal it does raise a question about the evidence that she gave on the subsequent occasion before the judge determining her defence about lack of recollection.
HAYNE J: Well, what is she meant to say, no, I do not accept the jury finding? It is a bit hard, is it not?
MR ALEXIS: Your Honour, really what one gets out of it is this, that her purpose according to her evidence was to convey Mr Hart’s message, and her purpose according to her evidence was that she was seeking to discharge a duty that related to the existence of the rumour, and I really do not wish to repeat myself, but we then look at what she in fact published and she did not publish anything about the existence of the rumour. She published the fact and that it was common knowledge and both of those matters she had seen no evidence of, as she accepted, and in respect of both of those matters she did not believe it was true.
What that leads to, in our submission, is this, that if the defamatory imputations were published to Mr Croft on a privileged occasion there would have to be a reciprocity of duty and interest to publish the fact of the appellants having an affair and that it was common knowledge when, as she well knew, it was only a rumour. It is our submission that there could be no duty on the respondent to publish the existence of a rumour to the chairman as a fact, there could be no interest to be satisfied by the chairman receiving the publication of a rumour as a fact. Publishing the rumour as a fact could not be for the common convenience and welfare of society. That must be so, in our submission, simply because, as I have said, the publisher did not believe the rumour was true and he did not know that it was common knowledge at the time.
The other important aspect of the particularly relevant circumstances is that the defamatory matter was volunteered, and that arises from the important finding the primary judge made concerning Mr Hart and the concern expressed by Ms Dillon to Mr Croft, not being a concern that he held or conveyed to Ms Dillon during that conversation.
Now, on the subject of voluntariness, I need to note Justice McHugh’s dissenting judgment in Bashford at paragraphs 73 to 75 that in light of a recent decision of the New South Wales Court of Appeal in Holmes a Court v Papaconstuntinos [2011] NSWCA 59, a decision of the court delivered on 21 March 2011 by a Bench of five that was convened because there was an issue concerning the correctness of an earlier decision of that court, in light of that decision, in our submission, the voluntary character of the defamatory statement here is a factor to be considered in scrutinising the circumstances. We do not submit that it is decisive.
GUMMOW J: Where do we find the relevant statement of principle by the Court of Appeal?
MR ALEXIS: Justice Allsop in paragraph 1 agrees with the reasons of Justice McColl. In his Honour’s short supplementary reasons at the end of paragraph 5, his Honour says in the last sentence:
The question whether a social duty arises in circumstances where no pre-existing duty or interest exists will be analysed by reference to all the circumstances. To such an analysis the voluntariness of the statement may be relevant, as it may be in the assessment as to whether the statement was fairly warranted by the occasion -
Justice Beazley in paragraph 11 agreed with Justice McColl. Justice Giles in paragraph 12 agreed with the reasons given by Justice McColl and said in paragraph 12:
To the extent to which my agreement with Tobias JA in Goyan v Motyka [2008] NSWCA 28, in which his Honour’s recording of the law (as agreed by the parties) which included paras [73] and [77] of the reasons of McHugh J in Bashford . . . carried acceptance of McHugh J’s views concerning the decisiveness of voluntariness and “pressing need”, I do not adhere to it. Voluntariness can nonetheless be a relevant matter -
Justice Tobias was to similar effect and can I note without reading paragraph 15 and paragraph 18 and then Justice McColl in her detailed reasons deals with the subject of voluntary communications from paragraph 95. In paragraph 96 her Honour says:
Suffice it to say that the majority decision in Bashford does not stand for the proposition for which Mr McClintock contended, that voluntariness is never a relevant factor in determining a question of qualified privilege. Rather, the joint judgment recognised . . . that “[t]here will be cases were an occasion is privileged but where both maker and recipient of the matter complained of have voluntarily undertaken the reciprocal duties which make the occasion privileged.”
Her Honour then sets out in 97 to 99 the two principal matters that her Honour indicates divided the majority decision in Bashford and Justice McHugh. Then finally, your Honours, Justice McColl at paragraph 141, after referring to Professor Brown’s text and authorities in the United States says:
Suffice it to say, with respect, that the views McHugh J expressed in Bashford concerning the decisiveness of voluntariness -
GUMMOW J: Which paragraph is this?
MR ALEXIS: Paragraph 141, your Honour.
FRENCH CJ: I think it is 140 in our print.
MR ALEXIS: It is the paragraph immediately above the conclusion paragraph.
FRENCH CJ: Yes, 140. It may be an artefact of the printing.
MR ALEXIS: Yes, thank you, your Honour. Your Honours will see her Honour said:
Suffice it to say, with respect, that the views of McHugh J expressed in Bashford concerning the decisiveness of voluntariness and “pressing need” are not supported by the authorities to which he referred or by decisions of this Court . . . the views McHugh J expressed in Bashford on those propositions –
that is decisiveness of voluntariness and pressing need
do not represent the law of Australia. The issue of qualified privilege turns on a close examination of all the circumstances of the publication.
So we put the submission that I articulated on that in light of that decision. Voluntariness is - - -
GUMMOW J: What is the relevant passage in Macintosh v Dun, referred to in paragraph 5, [1908] AC 390 at 399 in the Privy Council?
MR ALEXIS: Yes, I am not sure I am in a position to respond to that just at the moment. Could I return to your Honour’s question? On the subject of voluntariness, the two important issues, in our submission, are firstly that the conversation with Mr Croft was initiated by Ms Dillon and was not initiated by him; secondly, the conversation was not the response of any particular need; and thirdly, as the evidence demonstrates, and as the finding concludes, she was not passing on any concern of the regional director.
The alternative submission we wish to make is that the defamatory imputations were irrelevant or foreign to the occasion of the conversation between Ms Dillon and Mr Croft. In relation to the subject matter of the alleged conduct of Ms Cush that was then the subject of a current, or would be the subject of a future investigation carried out by or on behalf of the Department and also the conduct of the board in relation to the governance issues, the content of those matters is set out in Mr Hart’s memorandum that the Court has been taken to and, in our submission, that material makes plain that the affair, the existence of the affair, the fact of the affair, or whether it was common knowledge, formed no part of the subject matter of the discussion relevantly with Mr Croft. There is one piece of evidence that I would wish to take the Court to - - -
HAYNE J: Just before you do that, where can I conveniently find, in either your written submissions or in your outline of propositions, reference to the matters you have just been putting?
MR ALEXIS: Yes, your Honour. Yes, it starts in paragraph 28 on page 9, and then in paragraph 29 on page 10 your Honour sees we put the submission that publication of the rumour as a fact was extraneous to the occasion outside the umbrella of privilege. The piece of evidence that I wanted to take your Honours to is a letter that Mr Croft wrote to Ms Dillon after the café conversation in May 2005 at page 411. There Mr Croft writes to Ms Dillon and the email attaching the letter is at 410, but the letter speaks in critical terms of Ms Dillon making allegations about the board and not contributing in a positive way to the functioning of the CMA and the board itself and there is also reference in the letter to his invitation to prepare:
a business paper covering the concerns you expressed to me during our meeting at Moree on the morning of April 8th.
This was to be presented at the next board meeting.
This invitation was not acted upon.
Instead, a complaint about board processes and other matters appears in a document forming part of allegations against Amanda coming as a complete surprise to both myself and other board members.
That indicates that the fact of the complaint that was made was not disclosed during the conversation on 8 April. I do not need to read the rest of the letter to your Honours, but it is plain enough that Mr Croft is expressing his displeasure at the way the matter was dealt with. Importantly, out of the letter and one appreciates, of course, that it is written some time after the date of publication, but it nonetheless indicates that there were clearly matters relating to the proper operation of the board that was discussed on 8 April.
A request was made for a business paper to be prepared. That request was not acted upon but there is nothing in the letter to indicate that the existence of any affair formed any relevant part of any of those relevant issues. So, in our submission, the defamatory matter was irrelevant to the subject matter that was in investigation at the time concerning Ms Cush. It was irrelevant to Mr Boland’s role as a director at that time. When he sat on the grievance committee – that was back in January 2005 and clearly enough, many months had passed by – it was not relevant to the way in which the board was dispatching its business and there is no apparent connection between it and issues concerning management or morale or issues concerning the proper operation of the CMA.
So, that is why in our respectful submission the publication of the defamatory matter was extraneous to any occasion which was raised in terms of the existence of any rumour and why it follows, in our submission, that the impugned publication is not protected by qualified privilege.
GUMMOW J: Can you just look at your opponent’s outline, paragraph 25, page 13?
MR ALEXIS: Yes.
GUMMOW J: Point 2 there has dropped away, it would seem. So is paragraph 1 an accurate statement of the nub of your case? It looks like it.
MR ALEXIS: Yes.
GUMMOW J: If so, what do you then say about paragraph 29 on page 15? I am asking you because we do not have a reply filed, do we?
MR ALEXIS: No, your Honours do not. Yes, your Honours, when the reciprocal duty and interest that are said to exist are articulated in this case, the response to the defined occasion is the existence of the rumour. If the existence of the rumour was conveyed, then we would accept that that subject would be covered by a relevant privilege. Our learned friends - - -
KIEFEL J: I am sorry, just to clarify that. Do you accept that an occasion to communicate the existence of a rumour arose, that it would have been that the occasion presented itself for Mrs Dillon to advise Mr Croft because of his position of the existence of a rumour.
MR ALEXIS: Yes.
KIEFEL J: To that extent?
MR ALEXIS: Yes.
KIEFEL J: Well, if that is case, what you are really talking about is whether or not Mrs Dillon went too far.
MR ALEXIS: Yes.
KIEFEL J: Whether the privilege was exceeded. That is all we are talking about.
MR ALEXIS: Yes, your Honour, yes. It either was exceeded or the relevant occasion, when one defines it, did not extend to publishing the rumour as a fact. That is that.
KIEFEL J: Well, whether it was fairly warranted. That is it.
MR ALEXIS: Yes, your Honour.
KIEFEL J: You say it was exceeded because she went further and put it as a fact?
MR ALEXIS: Yes. If your Honours please, those are our submissions.
FRENCH CJ: Thank you, Mr Alexis. Yes, Mr Reynolds.
MR REYNOLDS: Thank you, Chief Justice. Your Honours should have a synopsis of argument which we have drawn up.
GUMMOW J: What do you say in response to what your opponent was just answering to Justice Kiefel?
MR REYNOLDS: I was going to deal with that straight up, if I may, your Honour, because as your Honour put to my learned friend, and I think he accepted, that paragraph 25 of our written submissions, not the synopsis, of course, encapsulates the two points which were the subject of a grant of special leave which was a restricted grant as your Honours Justices Heydon, Gummow and Hayne will recall. As your Honour Justice Gummow said, (ii) seems to have fallen away in the light of what my learned friend has said, so we are dealing really with just that first point.
Your Honour Justice Gummow raised with my learned friend paragraph 29 of our submissions which focuses upon the earlier decision of this Court in Bashford v Information Australia which I will come to in a moment. Your Honours will see in our submissions that we assert that Bashford is contrary to the submission which my learned friend advances and which is encapsulated in paragraph (i) of paragraph 25 of our submissions.
Your Honours will recall that the Bashford Case involved an inaccuracy, that is, an inconsistency between the information which was received by the publisher and the publication. The information which was received was a statement in a judgment of Justice Merkel which said, as I recall, that a company called Rex Bashford Pty Limited had engaged in misleading and deceptive conduct. When it came to the publication by the defendant there was an inaccurate representation of that finding, and it was asserted that Mr Bashford himself had engaged in misleading conduct and that was the key factual point of the entire case, that is, that there was an inaccuracy or a discrepancy between the information received and the information published. It could not be said to have been anything other than front and centre in both the argument and also the judgments in this Court.
Can I take your Honours then to that decision[2004] HCA 5; , (2004) 218 CLR 366? I will go, if I may, first to the headnote on page 366. At the end of the first main paragraph, it refers to the “inaccurate report of court proceedings”, and in paragraph (3) that goes from 366 to 367 he notes:
That the connection between the privileged occasion and the making of the defamatory imputation was not altered or reduced by inaccuracies in the report of the court proceedings.
Now, this particular issue was addressed in this joint judgment at paragraphs 23 through to 26. At paragraph 23 there is reference to a:
reciprocity of duty or interest between maker and recipient of the matter –
Paragraph 24 about halfway down there is reference to:
The subject of the guide . . . The dissemination of information about that subject . . . The matter of which complaint was made –
and then there is – we do not need to come back to this because of the concession that has been made – there is a paragraph 25 dealing with the voluntariness point. But importantly at paragraph 26 it is stated that:
What set the respondent’s Bulletin apart from some other paid publications was the narrow focus of both its subject matter and its readership. Because its subscribers were only those responsible for occupational health and safety matters, and because it dealt only with those matters, there was that reciprocity of duty or interest –
There is reference then to, just above the reference to Lange to news media dealing with “matters of political or other interest” and then next to footnote (74), “publishing defamatory matter to the general public.” In the final sentence:
The occasion of the publication of the matter of which the appellant complained was rightly held in the courts below –
that is in the Court of Appeal –
to be a privileged occasion.
One goes back to the recitation of the Court of Appeal’s reasoning,
that is to be found at paragraph 12 of the judgment, and
the joint judgment
summarises five matters from the judgment of Justice Hodgson with whom, as
I recall, Justice Sheller agreed.
The first of those is that it is stated
that occupational health and safety, that is the topic was identified as a
matter of importance:
Secondly, the communication of matters relevant to that issue . . . was said to promote that common convenience . . . Fourthly . . . the respondent was morally and legally obliged to publish for its subscribers matters of significance on the topic. Finally, it was said that the Federal Court’s decision on the claim . . . was a matter of significance on the topic –
The effect of paragraph 26, we would submit, both in its own terms and also by reason of its agreement that the decision of the court below on this point was correct, is to focus on the question of duty and interest, not on the inaccuracy which was the central issue in that case, but rather on a characterisation of the topics or subject matter, and then determining the question of duty or interest by reference to that characterisation of the topics. Justice Kirby agreed both with the Court of Appeal and with the joint judgment. That is at paragraph 187, where his Honour says that:
The test for determining whether a particular publication was made on an occasion of, and germane to a subject matter attracting, qualified privilege at common law is whether there was the requisite –
If I go back a bit, “germane to a subject matter” I should have stressed –
reciprocal duty or interest between the publisher of the matter complained of and its recipients. In this case, such reciprocity was present. In the reasons of Gleeson CJ, Hayne and Heydon JJ (the joint reasons), by reference to the analysis of Hodgson JA in the Court of Appeal, it is concluded that the necessary indications are present to attract qualified privilege. I agree.
To point up, if I may, the nature of that reasoning, Justice McHugh held, I think it is fair to say, a strong view about the majority reasoning in this case, a view that was also manifest in argument. He responds to this reasoning in relation to duty and interest, that is by reference to the characterisation of the subject matter leaving aside any question of inaccuracy, at paragraph 37 of the judgment.
GUMMOW J: Paragraph 37?
MR REYNOLDS: Paragraph 37 at page 381. He refers there halfway down the paragraph to:
the subject matter is described at a high level of abstraction – “occupational health and safety” or a “guide to workplace health and safety”.
He picks this point up again at paragraph 57. About halfway down the paragraph says:
the Court of Appeal held that Information Australia had a duty to publish matter, described at a high level of abstraction, without regard to the subject matter of the particular defamation -
So there is Justice McHugh, as it were, giving his response to this reasoning. That is the essential difference on this point between Justice McHugh and what I submit is a majority, both in the Court of Appeal and in this Court and that is, that one does not look in determining whether there is a duty or interest to what might be called the minutiae of the detail of the text of the publication but rather to a characterisation of its subject matter.
That is the effect of the holding in this case and, of course, the question of whether the inaccuracy in the publication meant that there was no duty and interest was the central point in this entire case. So we submit, going back to what fell from your Honour Justice Gummow in speaking to my friend, that this case is a very considerable obstacle to the primary and, indeed, as I understand it now, the only real submission which my learned friend makes on the question of duty and interest.
Now, I have taken that point out of the order which I wanted to put my argument but your Honours have focused on that and I hope that I have addressed that particular issue. Can I go back, as it were, to the beginning and to the observations which your Honours have made about the issues in this appeal. They are fairly confined and I am going to treat them in the light of the grant of leave as confined now to paragraph 25(i) of the submissions.
I should point out that there are two different points that are wrapped up in this first submission that my friend puts here. They both relate to this notion of discrepancy or inaccuracy. The first point, which I have just been dealing with by reference to Bashford, is the proposition that because there is this discrepancy or inaccuracy it follows that there was, at least in this case, no duty in the publisher to make the publication and no interest in the recipient to receive it.
So that is the first point focusing on the inaccuracy or discrepancy and then linking it to the notion of duty and interest. But there is another point and that is at the last couple of lines at paragraph (i) of our submission, which is the fact that there was this discrepancy or inaccuracy that had the consequence that the information published was irrelevant to the occasion. Your Honours will have noted that that submission accepts that there was an occasion and then says because there was an inaccuracy that the relevant portion was irrelevant to the occasion.
Can I go back briefly to deal with the findings that there was an occasion of qualified privilege and in the light of the - the way the argument has been presented can I deal with this fairly briefly? The Court of Appeal made some important findings at paragraphs 24 to 25. My learned friend said – this is at 641 to 642 of the appeal book. This was a slander case and your Honours cannot go to a particular text, other than this particular – to paragraphs 24 and 25. It is critical, I submit, for there to be a great deal of focus upon the nature of this communication.
Your Honours can read it in full for yourselves in due course, but may I just summarise a few of the points that are made there in paragraph 24? The first is that it was “a private conversation”. This, of course, is between the chairman of the statutory board and one of his board members. At line 35 there are “a number of ‘concerns’” about the CMA. There are:
concerns about: a complaint in relation to the appointment process in respect of an indigenous officer’s position –
I interpolate that related to Ms Cush. Generally to:
the corporate governance of the CMA . . . staff management issues –
particularly complaints about Ms Cush from the staff, generally -
the Board’s attitude to the staff –
Also, to the grievance process. Your Honours will have seen this issue of a grievance committee related to Mr Mills making a complaint about there being an affair between Mr Boland and Ms Cush and that Mr Boland should not have sat on that committee. Further down the paragraph that:
Mr Hart, was looking at whether the Board was reacting appropriately to these matters. Mr Croft was concerned that the Department was raising questions about whether the Board was doing its job properly –
There is then reference to a business paper and certain other governance concerns. When your Honours look at the detail of that discussion, which of course, finishes at paragraph 25 with the relevant references to the discussion about the affair, there is a fairly obvious reciprocal interest that these two people – Ms Cush and Mr Croft – have about these matters. They are central to their responsibilities. It is part of their responsibilities to be discussing these things.
The matters raised are both general, such as corporate governance, staff complaints, board’s attitude to staff, but also some particular matters relating particularly to Ms Cush and, of course, the issue of whether or not the board is doing its job properly or reacting appropriately just, if I may say by way of anticipation, the sort of thing that you would expect that two members of a board of a statutory authority ought to be talking about as part and parcel of their job because the duties that they have, as we have seen for the quest for support for Ms Cush, which was an out-of-session business paper, arise not only in relation, I submit, to formal board meetings, but also to the discussions that we all know take place between directors of boards of companies, or for that matter, directors of statutory boards of this kind in relation to all of the responsibilities which they have.
HAYNE J: Is there any statutory route for these duties that you say exist as between board members?
MR REYNOLDS: What we have done is we have summarised in our – and this is a partial answer to your Honour’s question – in paragraph 11, and I am about to come to these, are various provisions of the corporate governance manual, constitution and code of ethics and conduct which, we submit, ought be taken into account, but the more direct answer to your Honour’s question is to take your Honours to the Catchment Management Authorities Act and to refer your Honours, particularly to section 8, 9 and 10. Section 8 refers to there being a board of the authority. Section 8(2) refers to the affairs of the authority being controlled by the board of the authority. Subsection (3) the board is “appointed by the Minister”. Section 9 the authority is:
in the exercise of its functions, subject to the control and direction of the Minister.
I think this is the matter your Honour the Chief Justice raised with my friend, that:
A general manager and other staff of an authority are to be employed under Chapter 2 of the Public Sector Employment and Management Act 2002.
But, we would submit, returning to what your Honour Justice Hayne asked me, that with that background the more important matters are those we have set out in paragraph 11 of our submissions.
HAYNE J: Is that governance manual, itself, rooted in statute?
MR REYNOLDS: I do not believe so, your Honour. I did attempt to check that at one stage. I have to say to you Honour two things. First of all, my recollection is, having checked it, there was no reference to that. But, secondly - - -
GUMMOW J: Sections 12 and 13 are important, too, I should have thought.
MR REYNOLDS: Yes, I accept that, your Honour. Of course, on one view the inquiries by Mr Hart about whether the board was acting appropriately and doing its job properly, and your Honours will have seen references to a possible inquiry by ICAC, this discussion was a not unimportant discussion between these two people, but the - - -
FRENCH CJ: Presumably this corporate governance manual and so forth is in a standard form applicable to all of these authorities, but we do not know about that.
MR REYNOLDS: That I do not know, your Honour. Your Honours will see that, and we have tried to be eclectic about these 20 paragraphs we have put in there, but we submit that they are all of some importance, some more important than others, and at the risk of being a little tedious I would like to highlight of few of them. Paragraph (i):
The CMA board is responsible and accountable for the selection and evaluation of the general manager.
That is important. I am sorry, I am in my submissions at paragraph 11. Paragraph (iii), there is a reference to the chairperson’s responsibilities. Paragraph (iv), the governance to the authority being provided by board members. Paragraph (v), the general manager, this is important, “reports to the board”. Paragraph (vii), this is also important, given the allegation of an affair, that:
A board member of the CMA must disclose to a meeting of the board any direct or indirect interest in a matter being considered or about to be considered by the board.
Of course, there was the issue of whether the board ought to express their support for Ms Cush in the out-of-sessions business paper, and there was also the issue about the grievance committee where Mr Mills had made a complaint about there being an affair, and saying Mr Boland should never have been on the committee.
Paragraph (ix), duties there, this is important, of “reasonable degree of care and diligence” mirroring probably what one would expect under the general law. Paragraph (x) again refers to “conflicts of interest or potential conflicts of interest”. I will not read all of these. Paragraph (xv) is also important. I am reminded in further answer to your Honour Justice Hayne that the Act contains a schedule, Schedule 3, and there are some relevant matters in there as well. There is reference in clause 8 of that schedule to a chairperson, in clause 9 to disclosure of pecuniary interests. Clauses 12 and following to procedure, clause 14 to the chairman presiding at meetings, 15 to voting, and importantly also clause 16 gives some form of statutory backing to this out-of-session business paper, that is this call by Mr Croft for support for Ms Dillon which was part of the background to this case. Clause 17 talks about the general manager being able to attend board meetings which is also relevant.
I submit that when one looks at these portions of the corporate governance manual et cetera, which we have excerpted in paragraph 11 of our submissions, that those provisions, if anything, make the discussion which took place as set out in paragraphs 24 and 25 of the Court of Appeal’s judgment, are even more likely to be the sort of discussion which was a discussion in fulfilment of a duty or in respect of which both interlocutors had an interest or in respect of which they each had a reciprocal interest. This discussion, I would submit, was an essential part of these two people doing their duties, ultimately duties derived indirectly from the statute.
The Court of Appeal’s reasoning on the question of whether there was an occasion we have attempted to summarise – and I do not think my friends have disputed the summary – we have attempted to summarise that reasoning in our written submissions at paragraph 23 which goes from pages 11 through to 13. Again, I am not going to take your Honours right through that but I do want to take your Honours back briefly to pages 658 to 659 and I want to do that to make this point. The point I would like to make is that there are two ways that the Court of Appeal found the existence of a duty in this case. The first is, if your Honours go to the bottom of page 658, it is noted that there was:
a duty on the Appellant to convey –
the existence of the rumour –
to the Chairperson. Equally the Chairperson had a reciprocal interest in receiving the information. To allow the Chairperson to remain ignorant of the rumour when it had been raised by staff of the CMA and discussed between a Board Member and a Regional Director of a Department that had certain supervisory functions over the CMA would have been in breach of the Board member’s duty to inform the Chairperson of information relevant to matters that were clearly to be the subject of investigation by the Department and possibly by ICAC.
So that is what one might call the duty vis-à-vis the affair rumour, but there is another duty found by the Court of Appeal, and that is to be seen relevantly from page 658 at about line 20 where it is said that my client:
had a duty –
that is Ms Dillon –
to inform the Chairperson of the Board of the nature of those allegations. The Chairperson of the Board had a corresponding interest in receiving the information.
Now, I will not go back to it but the word “allegation” or “alleged” is to be found several times in paragraphs 49 through 50.
Importantly, the issue of the affair is said at paragraph 53 to be “relevant” and “connected to the privileged occasion”. We would submit that that, together with line 55 on page 658, makes it clear that the affair is relevant, in effect, in two ways – first of all, as generating a duty in its own right – that is at 658 to 659 – but also as being relevant or connected with the occasion which derives from a duty in interest, as spelled out at about line 20 on page 658. I will be coming back to that point in a little while, but I wanted to make that clear by reference to the reasons.
HAYNE J: In statutory terms, do I understand the duty which your side seeks to assert to be one which can be captured in this way, that members of the board of the authority are under a public duty to bring to the notice of the board, whether as a whole or through its chairman, matters affecting the proper performance by the board of its statutory function under section 8(2) of the Act, to control the affairs of the authority?
MR REYNOLDS: I would embrace that, but as your Honour would guess, I would not like to wed my argument and confine it only to that formulation of a duty, but I do accept that, and I accept that that puts the duty in a very pithy form. Can I say on that point that we have looked – or to be fair I should say my learned junior has looked, I hope, exhaustively – at the question of whether or not there is any case law akin to the proposition that your Honour Justice Hayne put to me? We have discovered one case, perhaps an unlikely source, which your Honours have a photocopy of, and it is called Chapman v Barber (1989) SLT 830, and this is a decision of Lord Coulsfield, and I will not read the decision to your Honours other than to refer at page 831 at line F in the first column, there is the usual recitation of authorities such as Toogood v Spyring, but the important passage is at letter E in the first column on 831, and I quote:
A number of authorities containing statements of the principle on which qualified privilege rests, and instances of its operation, were cited by counsel. No case was cited which dealt with the precise situation of a communication made by one director to another or others concerning affairs of the company. In my view, however, there is no real difficulty in applying the general principle to that situation.
He goes then to refer to the general principles. I would also appreciate that is talking about boards of companies, rather than statutory authorities, but I would also embrace that proposition.
There are a few cases that are round and about this proposition, but perhaps the only other reference that I give to your Honours is to a case on my learned friend’s list and I will not read it but I will just give your Honours the reference to Watt v Longsdon [1930] KB 130 and the relevant passage is the judgment of Lord Justice Russell at page 156 at about point 5 of the page. He talks there about – I will if your Honours have it just go briefly to this passage. Page 156 about halfway down the page:
As regard the publication to Singer he held that Singer, as director and largest shareholder of the Scottish Petroleum Company, and the defendant as director and liquidator of the company, had common interests in the communications regarding the conduct of the plaintiff while in the employ of the company.
So, that is perhaps another aspect to this. Your Honour the Chief Justice pointed out it may be strictly inaccurate to talk about Ms Cush being in the employ of the board here, but it is something akin to it, and he goes on to say:
that he and Browne had a common interest in communications relating to the conduct of the plaintiff while in the employ of the company.
So there are about three overlays here. One is the proposition that your Honour Justice Hayne put to me so pithily about statutory boards. The second is in relation to boards of companies, and the third is in relation to an employer, or I will use the expression quasi employer, dealing with matters relating to the conduct of a person in the employ of the company or body. All those general situations, we submit, are just the sort of situation where, to pick up the majority judgment in Aktas, where it is important that as a matter of common convenience in the welfare of society that people holding these positions, people with these duties, people with these reciprocal interests, be able to talk freely, even if what they say is inaccurate, and that as I think the majority judgment stresses is the rationale of the defence where we are talking qualified privilege. I cannot say that it is axiomatic that there will be falsity in the publication, but it is pretty nearly axiomatic because if there was not falsity one would expect a defence of truth rather than a defence of qualified privilege.
KIEFEL J: Is there a distinction between inaccuracy and exaggeration or elevation of rumour to fact?
MR REYNOLDS: Can I answer that in these - - -
HAYNE J: One counsel is inaccurate, his opponent exaggerates, I think, Mr Reynolds.
MR REYNOLDS: There is perhaps a lot of truth in that, your Honour, but as your Honour would say, I will not go there. Dealing with what your Honour Justice Kiefel has just raised and the way this case is put is to draw or try and create, we would say, a divide between the information received by the publisher and what is actually said. Now, as to the actual facts of this publication, we submit that there has been – to pick up your Honour’s expression – “a great deal of exaggeration” in relation to whether there is any discrepancy.
The point I would like to move to now is to try and attack the underlying basis of my learned friend’s submission in paragraph 25(i) of my document. His first proposition, as I understand it, is that the information received by the publisher was that there is only a rumour; that is to be found more than once in his submissions but particularly at paragraph 25. That is the first issue I want to explore. The submission I want to put by reference to the evidence is that when one looks at the information which was presented to Ms Dillon that certainly some of that information was that there was a rumour that there was an affair but the information can more accurately be summarised in the following three ways. First of all, there were allegations of an affair. Second of all, there were expressions of concern that there was an affair by employees of the CMA, and thirdly, there were expressions of belief by employees of the CMA and others about these things.
Now, we have dealt with this in our submissions but I would like, if I may, and I will try and move as quickly as I can, to make a few points briefly about the information which was provided. Before I do can I return to something which I submit is important in this context? It is a matter that your Honour Justice Bell raised with my friend and that is in relation to Justice Bergin’s use of the word “rumour” and your Honour wondered whether or not that the point my learned friend is now taking was taken in the Court of Appeal. I would submit that a fair way of characterising Justice Bergin’s judgment was that her Honour did not perceive that this point was at large and that one has to look at her Honour’s judgment. We have talked in our submissions about the inverted commas around the word “rumour”. One must look at her Honour’s judgment in the light of the fact that this point that my learned friend is running was either not apparent to her Honour or was not put as starkly and as clearly as my learned friends have put it in their submissions orally and in writing.
We have submitted, and I suggest this is a not inappropriate submission, that it is a sort of compendious way that her Honour has referred to the information received about the affair, again in light of the fact that this distinction that has now been made was certainly not sharply drawn. I want to deal with a few conversations, and I will deal with this as quickly as I can and just give your Honours the reference. The first is what Mr Mills said, and this is at the Court of Appeal at paragraph 12 on page 637 at line 58, he talks about belief “that the Respondents were having an affair”, so that is not just rumour, it is allegation or belief or concern, or a manifestation of concern. Next, Mr O’Brien, this is Court of Appeal paragraph 12 at appeal book page 638 at line 5, had:
“some concerns about the relationship” between the Respondents that related to some issues about the Grievance Committee.
Again, this is not rumour, this is allegation or belief, or a manifestation of concern. Ms Chittenden, this is mentioned in our submissions at the top of page 14, and at page 601, line 25, the trial judge refers to this. She told Ms Dillon that “Amanda really likes Les”. So that is what a trial judge dealing with evidence would call a conclusion, I guess, from facts observed, or possibly observed rather than just, we submit, rumour. The findings here are rather unsatisfactory and the Court of Appeal found at paragraph 14, this is at page 638 at line 40, that he “conveyed his knowledge of the rumour to” Ms Dillon. Now, the evidence is far more complex than that, and I can take your Honours through it, ultimately there was a conflict which was not resolved by the trial judge or the Court of Appeal, but what I would prefer to do is give your Honours a note on that rather than take your Honours for five or 10 minutes through the detail.
KIEFEL J: Is it necessary for us to review the evidence to determine what other people believed in what they had said as the rumours circulated. If we are concerned with whether or not the occasion was exceeded by what was said and, in that sentence used, are we not concerned with whether or not Ms Dillon had an honest belief in what she actually said?
MR REYNOLDS: No, it is not one of the points raised by this appeal.
KIEFEL J: That is the requirement for qualified privilege. I do not see how it can be avoided. I do not see how the Court of Appeal could have avoided it.
MR REYNOLDS: Where one is talking about misuse of the occasion one is not talking about - - -
KIEFEL J: I was saying more than was necessary for the occasion.
MR REYNOLDS: One is not talking about the existence of the occasion but rather matters that go to malice or may go to malice because, as the decision of this Court makes clear in Roberts v Bass, a lack of belief in the truth of what is stated may ground ultimately a submission that, to use your Honour’s expression, the occasion has been misused and that is, of course, the test of whether there is malice.
KIEFEL J: It is also the requirement for qualified privilege.
MR REYNOLDS: I submit not. It is not, as I say, a matter which my learned friend has advanced as one of his two propositions on this appeal nor, I submit, has he referred your Honours to any authority for that. There is a distinction that is to be drawn, I submit, in the authorities and your Honour Justice Heydon adverted to it in the Aktas decision and it is referred to by Justice Dixon in the Guise v Kouvelis decision between whether there is a privileged occasion and whether that occasion is misused.
KIEFEL J: Yes.
MR REYNOLDS: It is the latter issue which matters of subjective belief or knowledge such as whether or not the publisher believed in the truth of something are matters which may demonstrate in all the circumstances that the occasion has been misused or used for an improper purpose. They are not matters, I submit, which go to the existence of the occasion and my learned friend wanted to advance that submission. It is a rather large, we submit, jump from previously well-established authority, established inter alia by Roberts v Bass in this Court. Can I just develop that submission very briefly? If, as the judgments in this Court make clear in Roberts v Bass, that lack of subjective belief in what is said may be a ground - an argument about malice.
KIEFEL J: Well, it could be tested in one way, I suppose, if you rely upon what was said as inaccuracy or mistake. That assumes, does it not, that there was a belief in what was said as accurate, and that the mistake or inaccuracy is just something that followed inadvertently upon what was said. You would otherwise have to say that the defence of qualified privilege extended to what was put forward as a falsity, with knowledge of falsity, and it does not.
MR REYNOLDS: Yes. Well, the point I am trying to make, your Honour, is that if ipso facto lack of belief in the truth of what was said destroyed the occasion then there would not be all this law in the context of malice saying that that factor may be enough to create malice and thus destroy the privilege because one would - - -
KIEFEL J: That may be because a lot of the cases are concerned with drawing inferences because subjective belief cannot be ascertained very easily, but here we actually have evidence and findings about what Ms Dillon considered to be the case; that is, that the rumours were not to her knowledge substantiated.
MR REYNOLDS: Yes. Well, your Honour, we submit that there is – and I have to be truthful and say I have not checked this precise point because we would submit it is not large in the points raised on the appeal – but that it is not a sine qua non of a finding of an occasion for qualified privilege that the publisher believe in the accuracy of what is being said. There are many situations in the books where it is quite appropriate for a publisher, notwithstanding that they have no belief in what they are about to relay, or even where they know that it is false.
They can still have a duty to pass that information on and the receiver can still have an interest because the issue becomes not so much whether what is said is accurate, and of course, accuracy may be a matter for somebody other than the speaker or the communicator. It is not so much that as whether or not, given the fact that the allegation has been made, or that belief has been expressed, or a concern has been expressed by relevant people, that it is important that that be passed on to somebody, and I will be taking your Honours to some references which establish, we submit, that Ms Dillon had believed that she did have a duty to convey this information, and can I give your Honours some references in that context?
To 295, this is appeal book at line 55 to 296, point 5. 296 at line 30, 214 at line 30, and 279 at line 55, and 218 at line 45. We submit that those references, we can go to them if your Honours would like, show why my client believed that she had a duty to convey what I will describe as the information, notwithstanding that she had not got to the point where she had formed a belief in the truth or otherwise of these allegations.
That is, as I submit, not the way this case has been constructed. Your Honours have not come here, and nor have we, to deal with that precise point. I think your Honour Justice Kiefel has raised it, that is the best I can do to respond to it on my feet.
KIEFEL J: You say it was not raised in the Court of Appeal, could I refer you to paragraph 57 at appeal book page 660? After a reference to Clark v Molyneux, Justice Bergin says:
Similarly, in the present case the Appellant used expressions in excess of the communications she had received.
MR REYNOLDS: Well, of course, as your Honour Justice Bell has pointed out earlier on in this appeal, that is based on a predicate, and the assumption is that there was only information about a rumour passed on, which is the way the case seems to have been conducted, or Justice Bergin perceives it had been conducted there. If one assumes that hypothesis, then it follows that there will be an excess, I have to accept that, but the point that I am getting to, or striving to get to, is the proposition that when you do look at this information from these various people that informed my client of concerns et cetera, that it is not just relaying a rumour, and I referred to Mr Pitman. Your Honour the Chief Justice has not invited me to put in a written document, so I guess I had better go through it.
I will deal with the findings in relation to him and then deal with Mr Hart and Ms Dillon. I will try and do this as quickly as I can. In relation to Mr Pitman, Ms Dillon gave evidence – and I will with the Court’s leave put this onto the transcript very quickly – she gave evidence at appeal book 207, line 52 that Mr Pitman stated:
that he was concerned . . . because he believed that there was affair.
At 208 at line 35:
that he had observed the interactions between Mr Boland and Ms Cush . . . they were very friendly.
Mr Pitman at appeal book 323, point 25 says he did not say that he believed that there was an affair, but he does not address the issue of whether he expressed concern as to whether there was an affair. At 321, point 15 to point 30 he refers to observing touching and closeness, but he does not actually say that he said that to Ms Dillon. The trial judge does not really resolve the conflict at 600, point 40, he quotes Ms Dillon in relation to her evidence about concern and belief and that may amount to a finding, and also refers at 600, point 25 to Mr Pitman telling her of a rumour. So the bottom line is it is all a bit messy, but they are the references.
FRENCH CJ: They are more complicated, you would say, than the way in which the Court of Appeal characterised it.
MR REYNOLDS: Exactly, but again, as your Honour Justice Bell has pointed out, we submit sagely, this is not the way this case was run, or at least it is not how Justice Bergin perceived it as being run.
Mr Hart at the Court of Appeal paragraph 18 at page 639 says:
“the topic or the subject of the existence or otherwise of an affair or a relationship” between the Respondents was “mentioned” by the Appellant.
Again, this is not just rumour. Next Ms Dillon gave evidence which is quite important at 535 at line 25 – I am almost done, your Honours – where very generally she said that she:
had been told by members of staff they had concerns that Mr Boland and Ms Cush were having an affair.
At line 40 she says that she:
believed there were allegations of an affair.
So if there are three words that your Honours take away from this turgid review of the evidence, it is the word “allegation” first, secondly the word “concern”, and thirdly the word “belief”. To be sure, there was also a widespread rumour and that is referred to at appeal book 662, line 30 in the Court of Appeal, and 604 at line 15 by Judge Elkaim. It is important for me to note also that if they are the expressions that are used, allegations, concerns, belief, talking about observing, touching, and what have you, those items of information, and there are multiple sources that my client was dealing with, when one looks at each of those items and addresses them either singly or collectively, they certainly imply that there was, in truth, an affair.
So that if there had been a defamation action on those publications the plaintiffs in this case would have had a very powerful argument based on authority that notwithstanding that the ipsissima verba were not that there is an affair between these two people, that these communications by way of innuendo in effect stated that they were. In fact, it goes beyond innuendo. Your Honours will have seen that my learned friend has referred in his submissions to Mirror Newspapers v Harrison [1982] HCA 50; (1982) 149 CLR 293 to a passage at page 300 at about point 6 where Justice Mason, with whom as I recall the other Judges agreed, refers to the rumour cases and says – this is 300 at about point 6 to 7:
The essence of those cases is that the defendant gives his imprimatur to the rumour; by passing it on he gives it credence, implying that it is well founded or that it may be so.
There are a lot of cases - and I can give your Honours the references in a note if your Honours would like it – that say that statements of the kind we have just reviewed, whether they be statements there is a rumour that X is a murderer or people say that X is a murderer, it does not really matter how it is put, are no different in law to a simple statement by a defendant publisher that X is a murderer. I put it this high. If your Honours were dealing with another case about directed verdicts like Gacic v John Fairfax and we had a written text and all it said was people say that the plaintiff is a murderer. That is all there was. I would submit that the plaintiff would be entitled to a direct verdict on the meaning that the plaintiff is a murderer.
That is why we say that when one hunkers down and the Court of Appeal, of course, did not do this, they did not have to, and looks exactly at exactly the information that was provided that my learned friend’s first proposition fails. It fails because he cannot get to the point where he can reasonably assert that the only information which the defendant publisher had was that there was a rumour of an affair. That was his base proposition which he asserts in order to set up these other two legal arguments, the first based on duty and interest and the second - - -
GUMMOW J: You may be right about the murderer statement. We had better be more fully informed, though, I think. I am thinking about cases like Lewis v The Daily Telegraph which is in the same area of discourse, really.
MR REYNOLDS: It is and I will give your Honours a reference to that case in [1964] AC 234 and I think the relevant passage your Honour is thinking of is in the speech of Lord Devlin at pages 283 to 284. Can I say, there are about eight or 10 – at least – authorities that deal with this point and what I would like to do in response to what your Honour Justice Gummow has put to me is to just provide a list with page references, no commentary, on that proposition.
FRENCH CJ: Yes, all right.
GUMMOW J: On this question of the common convenience and welfare of society where you took us that too that case from Scotland about directors, you may get some support from what we said in Federal Commissioner of Taxation v Day [2008] HCA 53; 236 CLR 163 at 180 to 181, paragraph 34, as to the public service and the operation of the public service and, by extension I suppose of public authorities.
MR REYNOLDS: Yes, quite, which as your Honour Justice Hayne pointed out to me is more precisely the issue that is raised here, rather than company boards. I will try and have a look at that over the luncheon adjournment.
GUMMOW J: Namely, the considerable public interest in the proper conduct of the statutory bodies - - -
MR REYNOLDS: Yes, this is a - - -
GUMMOW J: - - - which transcends that of private corporations really.
MR REYNOLDS: Indeed, where one is talking about a more obvious candidate for public interest and there being a public interest in having free and full discussions particularly where those discussions are in private and are only between two people. I mean, we are, I submit, really in the paradigm situation for the application of principles of qualified privilege. One of the problems, perhaps, in this case is that there may have been, particularly at first instance, a little too much focus on what I will call the gobbet, the portion of the discussion relating to the affair.
Of course, the question of whether there was an occasion cannot be determined just by lifting out that one portion when one puts the discussion about the affair in context as the Court of Appeal does in their findings about what constituted the matter complained of at least by way of subject matter. I submit that any difficulty in this case, though we submit there is none, really falls away when one focuses on that. The next proposition that my learned friend advances on this first ground is that my client stated that the affair was a fact. Now, of course, my learned friend has - - -
FRENCH CJ: Yes. Carry on.
MR REYNOLDS: - - - has a finding in relation to imputations which treat the affair of course as a matter of fact. But if the submission is that – and that is in his submissions at paragraph 29 – my client published the affair as a fact when the information received was only a rumour – now, I have dealt with the latter proposition for the last 10 to 15 minutes. As to the former proposition, when one goes to the finding as to what was said – this is in appeal book page 16 at line 10, this is the question the jury answered yes to and there is a similar question at page 21, line 15. This is the substance – your Honours will have noticed the words above “words substantially the same” of what was stated or published is not a statement in direct terms “there is an affair” but rather:
“it is common knowledge among people in the CMA that Les and Amanda are having an affair”.
Now, of course, the jury found that that statement conveyed perhaps to an ordinary reasonable listener, perhaps by reference to some reading between the lines, or implication, that that assumes or implies that there is in fact an affair, but the point I am trying to get to is that when one lines up this information which was provided to my client, and looks at the statement that was made, there is either no difference of substance between them because both categories of information imply that there is an affair, or if there is a difference, then it is a fairly slight one.
On one view of things my learned friend is using as the base for his submissions of law the difference between an allegation or belief or concern about an affair, on the one hand, and a publication that it is common knowledge that there is an affair and as I say there is either no difference in substance because they both imply there is an affair, or if there is a difference, there is not much to it. My learned friend cannot, I submit, on the evidence, get to his large discrepancy of information is that there is a rumour, but she states it outright as a fact. That is not, we submit, a fair way to analyse the evidence in this case. I see the time, Chief Justice.
GUMMOW J: Mr Reynolds, just before that, as things stand at the moment, there is going to be a new trial on qualified privilege, is there not?
MR REYNOLDS: We would submit, confined to the issue of malice and on that occasion some of the matters that your Honour Justice Kiefel raised with me - - -
GUMMOW J: That is what I am wondering about.
MR REYNOLDS: - - - will no doubt be live.
GUMMOW J: You would need a variation of the Court of Appeal’s order.
MR REYNOLDS: If there is no understanding between us that the re-trial is confined to malice, I accept that.
GUMMOW J: You have to apply for it.
FRENCH CJ: Mr Reynolds, roughly how long do you think you are likely to be?
MR REYNOLDS: I was reading the other day, your Honour, that Captain Oates was asked that and he said he would be some time.
FRENCH CJ: A little while, is it?
MR REYNOLDS: I will not, of course, give that answer - - -
HAYNE J: The blizzards are blowing, Mr Reynolds, the blizzards are blowing.
FRENCH CJ: You may never be seen again.
MR REYNOLDS: That would be an impertinent response and I do not make it, your Honour, but the response I would make is about an hour.
FRENCH CJ: All right, thank you. We will adjourn until 2 o’clock, thank you.
AT 12.46 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.01 PM:
FRENCH CJ: Yes, Mr Reynolds.
MR REYNOLDS: Thank you, Chief Justice. Your Honours, can I deal with two matters at the outset, the first is the question of the orders. Your Honour Justice Gummow, I think it is fair to say, invited me to make an application, which I now make, and that is apropos the orders which your Honours now have, I submit that they are the appropriate orders to be made in this case, assuming that the appeal is otherwise dismissed. It has the effect of correcting the order at line 32 on page 689 which is ambiguous, namely that there be a new trial on the issue of qualified privilege.
GUMMOW J: So what then would happen? The witness would come back, would they?
MR REYNOLDS: On my orders?
GUMMOW J: Yes.
MR REYNOLDS: There would be a retrial in the District Court confined to the issue of malice, and if the plaintiffs succeeded on their argument as to malice, then they would win the case. If they did not, then they would lose the case.
KIEFEL J: What would be your grounds for the cross-appeal?
MR REYNOLDS: Well, it is only minute, your Honour, and that is we are only cross-appealing, as your Honour puts it, on the question of the appropriate order that should have been made by the Court of Appeal; it is just a correction really. On the assumption if we were to win the appeal I think my learned friend and I are at ad idem on this question.
FRENCH CJ: Mr Alexis? Yes, all right, well, you can proceed.
MR REYNOLDS: The second matter that I would like to raise is apropos the judgment in Federal Commissioner of Taxation v Day [2008] HCA 53; (2008) 236 CLR 163, and your Honour Justice Gummow drew my attention to the passage at pages 180 to 181. Can I just make a few brief points in relation to this passage? You see a reference, as your Honour noted, to a judgment of Justice Finn in McManus v Scott-Charlton. There is reference at the top of page 181 to a:
government carrying into effect its constitutional obligations to act in the public interest.
A little further down the page there is reference to:
securing values proper to a public service, those of integrity and the maintenance of public confidence in that integrity.
In that regard there is a reference to legislation about the “private conduct of public servants”. Further down the page to:
improper conduct otherwise than as an officer –
and in paragraph 35 to the objects of the Public Service Act. Your Honours will have seen from our synopsis of argument as opposed to our written submissions at paragraph 2(iii) that we summarise briefly the allegations of misconduct against the general manager, Ms Cush, and we refer at (iv) to the investigations that were in train into those allegations.
Of course, if anything, the misconduct or alleged misconduct in the present case is a fortiori of that referred to at paragraph 34 of Federal Commissioner of Taxation v Day because these allegations relate not to private conduct but rather to misconduct or alleged misconduct in office. To complete the loop on that submission, can I refer your Honours to paragraph 34 of the decision in Aktas where the Chief Justice and Justices Gummow and Hayne there refer to:
the advantages to society from providing for freedom of communication . . . on such an occasion, which outweigh the need for accuracy –
underlining the proposition we discussed before lunch that the rationale of this defence is that inaccurate statements can be made in some circumstances with impunity –
in conveying a defamatory imputation? What is the special and reciprocal interest in the subject matter of the communication which makes it desirable as a matter of public policy that, in the general interests of the whole community, the communication should be made with impunity –
That is, I think, the link with the propositions referred to in the joint judgment in Federal Commissioner of Taxation v Day. Your Honour Justice Gummow referred to the summary of the points in issue in this appeal by reference to paragraph 25 of our submissions and it is only (i) that is in play, and I think I said at the outset there were two aspects.
The first is what I will call the duty and interest aspect, that is that there is, by reason of the inaccuracy, or alleged inaccuracy, I should say, or discrepancy, there was no duty or interest. There is another aspect to this submission which my learned friend puts and that is in the last two lines of paragraph 25(i) of our submissions, and he submits that because the rumour he says was published as a fact that had the consequence that the information published was irrelevant to the occasion.
In other words, we go back to the proposition that there was a discrepancy or an inaccuracy in translating the information received into the publication, and as your Honours appreciate, we contest that in all respects, but even assuming that my learned friend’s arguments about discrepancy or inaccuracy are correct, we submit that there is, in any event, a grave difficulty for him in making that submission.
The reason is the decision again of this Court in Bashford v Information Australia [2004] HCA 5; (2004) 218 CLR 366. Again, your Honours will recall that that case, the key point in issue was a discrepancy between the information received by the publisher and that published by the publisher and in that case also, the appellant, Mr Bashford, put a submission that because there was that inaccuracy it meant that the inaccurate material had no connection and was irrelevant and therefore not covered by the privilege.
This issue was dealt with in the judgment of the Chief Justice and Justices Hayne and Heydon at paragraphs 27 and following. Your Honours will see the heading there “Connection with a privileged occasion” where their Honours talk, in paragraph 27, about the matter being:
sufficiently connected to the privileged occasion . . . the Court of Appeal was right to conclude that it was.
I will come back to the Court of Appeal shortly. Then at paragraph 29 it is noted that:
The matter of which the appellant complained had as its subject the use that persons . . . might make of material safety data sheets. That subject was evidently connected to occupational health and safety. The particular parts of the matter published by the respondent which defamed the appellant –
and I interpolate which contained the inaccuracy –
related to that subject. The defamatory matter related to the subject –
for reasons that are then specified and this is the important bit, the last sentence in that paragraph –
That the article wrongly identified the appellant as having published this assertion did not alter or reduce the connection between the privileged occasion and the defamatory matter.
In other words, an inaccuracy in relation to relevant subject matter will not render the discussion irrelevant to the occasion. The same approach was taken by Justice Kirby and at paragraph 198, which is at the bottom of page 436, he says that:
The publication of the false –
Again, underlining the inaccuracy –
and defamatory imputation concerning the appellant was hurtful. But, as such, the subject –
Again –
was not irrelevant to the occasion of the publication. Still less was it gratuitous and lacking in relevant connection with the subject matter. That subject matter –
Then the last sentence is, again, the key one –
the defence of qualified privilege was available. It was not lost because of the mistaken reference to the appellant in the place of his company.
In other words, again, if the subject matter is, in a general sense, relevant then it will not be rendered irrelevant because there is an inaccuracy in the discussion of that subject matter. Again this goes back, as we discussed before lunch, to the whole rationale of this defence, a rationale underlined in paragraph 34 of Aktas, which is a paragraph I took your Honours to about three minutes ago.
One of the aspects of the decision in Bashford is that although the Court dealt with the question of relevance or connection I would suggest it is fair to say that the Court did not bite down on a precise test of connection or relevance and, for the purposes of that case, probably did not need to and your Honours may well think that this case falls into a similar category, but in our submissions at paragraph 32 we have essayed a submission on the correct test and we do so by reference to the judgment of Justice Hodgson with whom Justice Sheller agreed. This is page 17 of our submissions at about line 5, and he held there, as we have excerpted that “material communicated on the privileged occasion will have the protection of the privilege unless it is truly unconnected with the subject matter of the occasion”. Now, if that is the test, it is going to be very difficult - - -
GUMMOW J: What is the force of the word “truly”, distinct from “falsely”? Does he mean “plainly”?
MR REYNOLDS: Well, someone once asked, what is truth?
GUMMOW J: You are inviting us to take this up.
MR REYNOLDS: I am. By that I mean there is no real connection.
GUMMOW J: Real?
MR REYNOLDS: I am going to pursue this, your Honour, I am not going to leave it there because I want to submit that there is a more accurate test and I want to submit that that is to be found in the judgment of Sir Owen Dixon in Guise v Kouvelis [1947] HCA 13; (1947) 74 CLR 102. His judgment was, as your Honours will recall, a dissent, but it seems to be the judgment that everyone refers to and I am going to continue to do that. The issue of relevance is discussed by his Honour at page 117 and he refers at about point 2 to “a social or moral right or duty” and to Baird v Wallace-James, and then follows on as follows. He says:
But, in examining the facts, it must be kept steadily in view what the question for the Court is. The primary question for the Court is whether the occasion is privileged. If the occasion is privileged other questions may arise and it is possible that they may be, or comprise, matter of law for the Court, though it is more likely that they will be questions of fact for the jury.
This is the important sentence in this regard –
The question whether the defamatory matter is or may be relevant to the occasion may arise in a form which the Court must decide -
and then appears to leave the question unresolved. He refers, at about point 6, to the question of law for the Court of “sufficiency of evidence” and then notes –
Whether or not the occasion gives a privilege is a question of law –
And then talks, harking back to my discussion with Justice Kiefel earlier on, as to whether or not –
the party has fairly and properly conducted himself in the exercise of it is a question for the jury - - -
FRENCH CJ: Are we working here on the premise, against some of your earlier submissions, that the communication made to Mr Croft was a mutation, if you like, in the hands of the respondent of a rumour into common knowledge?
MR REYNOLDS: I guess so. I mean I have contested that proposition, your Honour appreciates that.
FRENCH CJ: I understand that, yes.
MR REYNOLDS: And, of course, if there is no discrepancy then we do not go any further. If there is a discrepancy then your Honours are going to need to focus, first of all on the precise nature of the discrepancy. It may be that there is a different discrepancy, if I can put it that way, from the one my learned friend articulated. But we are here acting on either of two premises. One is that there is a discrepancy of some kind yet to be articulated by your Honours, or, alternatively, that there is the discrepancy my learned friend articulated that is the discrepancy between fact - - -
FRENCH CJ: Is there any worst case discrepancy, to use that language against you, than the one I have just formulated?
MR REYNOLDS: No. No, my learned friend certainly puts it at its highest against me. The test that Sir Owen articulates, I submit, is to be found at page 118 at about point 2. He says this:
unless the words complained of were so foreign to the occasion that they must be held extraneous or irrelevant, the rest is all matter for the jury.
I would submit that is the formulation his Honour provides there, which is a formulation of an issue of law. Harking back to point 4 on page 117, that is the matter of law for the Court as opposed to the question of fact for the jury. Underlining this may be a more complex question, which your Honours may not want to get into at all. I would suggest one can read that either of two ways. One is that the Court deals with this issue of relevance, albeit on a very pro-defendant basis on the question of whether there is an occasion. The other possibility is that Sir Owen perceives that the issue of relevance is relevant only to malice and, therefore, a matter for the jury, unless the judge, as a matter of law, withdraws the issue from their consideration.
Now, that was the view, or that is very close to the view, that your Honours will have seen from our submissions that Lord Diplock took in Horrocks v Lowe. This is at paragraph 32 of our submissions where we refer to Horrocks v Lowe [1975] AC 135 at 151. At page 151, at about letter E, Lord Diplock says apropos relevance that:
Logically it might be said that such irrelevant matter falls outside the privilege altogether. But if this were so it would involve the application by the court of an objective test of relevance to every part of the defamatory matter published on the privileged occasion; whereas, as everyone knows, ordinary human beings vary in their ability to distinguish that which is logically relevant from that which is not . . . So the protection afforded by the privilege would be illusory if it were lost in respect of any defamatory matter which upon logical analysis could be shown to be irrelevant to the fulfilment of the duty -
Then he refers to Lord Dunedin’s speech in Adam v Ward and said that:
the proper rule as respects irrelevant defamatory matter incorporated in a statement made on a privileged occasion is to treat it as one of the factors to be taken into consideration in deciding whether, in all the circumstances, an inference that the defendant was actuated by express malice can properly be drawn.
So Lord Diplock appears to be saying there that this issue of relevance is only relevant to malice which is not generally the view that has been taken of that issue, or that discussion of that issue, in Adam v Ward and I refer to the passages we have referred to from Adam v Ward in paragraph 32 of our submissions. Now, I may be venturing into what your Honours may regard as deeper water than your Honours need to - - -
GUMMOW J: Well, there is a question, is there not, as to how one fits page 117 of Guise into this section 7A structure under the 1974 Act (NSW).
MR REYNOLDS: Might I submit section 7A – I withdraw that. Your Honour is quite right.
GUMMOW J: As to who is to determine - Sir Owen Dixon is assuming that the jury will be determining - - -
MR REYNOLDS: He is, but when we are dealing with the correct jurisprudential construct or template we need to go back to the way these issues were dealt with at common law where, as your Honour says, there was a division of function between the judge and the jury. Here, under the section 7A system, the question of whether there is an occasion of privilege is a matter for the judge and unlike a common law trial, the traditional common law trial over the years, the issue of malice is also for the judge. But, nonetheless this distinction is, I submit, important particularly in the present case whereas your Honours will have seen from the order, there is to be a retrial on malice and yet the question of occasion is the only one before the Court today.
The issue I am looking at, of course, is relevance relevant to the occasion or is it relevant only to the question of malice, in which case, it would only be an issue on the retrial rather than for your Honours today. I have raised this with your Honours, obviously because if your Honours were to form the view that it was relevant only to malice, then my learned friend’s submission must fail. The second reason I have raised it is that in
the argument in Bashford I did not raise this passage of Guise v Kouvelis and I do not think I raised Horrocks v Lowe either. Your Honours have ventured into the area of relevance and I did not want your Honours to be unapprised of a potential difficulty before your Honours wade into the issue of the appropriate test.
To be precise, if this is a matter of relating to the occasion, I adopt the test at point 2 on page 118, but the better view, I would submit, is that this is probably only a matter relevant to malice and the judge’s function is the traditional function of the judge to deal with that issue only so far as it raises an issue of law, but as I said at the outset, your Honours probably do not need to deal with that particular issue to resolve this case. If, of course, that is the test on the issue of occasion, I would submit that to talk about inaccuracies really demonstrates that there is no way that that test articulated by Sir Owen, or for that matter by Justice Hodgson, could be satisfied. I have been a bit shorter than I anticipated. If the Court pleases, those are my submissions.
FRENCH CJ: Yes, thank you, Mr Reynolds.
MR REYNOLDS: I have not obviously dealt with (ii) in paragraph 25 in my submissions, but I do not understand that to be a matter your Honours are concerned with any longer.
FRENCH CJ: Thank you. Yes, Mr Alexis.
MR ALEXIS: Your Honours, could I raise three points in reply? Firstly, your Honour Justice Bell raised with me at the outset what Justice Bergin said in paragraph 61 at page 662. Our learned friend has explored that further by putting a submission that her Honour perhaps did not perceive that the elevation of rumour to fact was in play. I responded to your Honour’s question by simply indicating that the matter was in play and I should have, in putting that to your Honour, drawn express reference to paragraph 55 of her Honour’s judgment on page 659 where, as her Honour records, the issue was clearly raised and that leads to the discussion that follows, and her Honour says there that there is an –
aspect of the matter that was not the subject of the trial judge’s reasons.
It was to that that I was making reference when your Honour raised particularly the language her Honour used in the first sentence of paragraph 61. Then, as your Honour can see, Justice Bergin goes on to say that:
it was raised during written and oral submissions on the appeals. It was that the Appellant conveyed the information to Mr Croft as a fact . . . rather than as a rumour –
and the discussion then follows that, and I regret that I did not refer your Honour expressly to that when your Honour raised it with me earlier.
BELL J: To the extent that in paragraph 61, her Honour notes that:
No party in the appeals has claimed that the trial judge fell into error –
The background to that that needs to be understood is that the trial judge, because of his view on malice, did not - - -
MR ALEXIS: Did not deal with it.
BELL J: Yes, I understand.
MR ALEXIS: That is the point that I sought to convey to your Honour, in answer to your Honour’s question, and I did not do it as accurately as I should have. The next matter is this; our learned friend has made reference to the terms of the question that was put to the jury on publication, and he draws particular attention to the reference in that question to words or words substantially the same. He posits as part of a submission that what may have been conveyed might have been by implication, and there is not a lot of difference between the rumour and the fact. The question of meaning, however, was clearly settled by the jury’s findings and that, in our respectful submission, puts any issue as to meaning out of play.
The final matter relates to Justice Hayne’s proposition on duty. We would not cavil with the proposition that your Honour put. We would draw, however, attention to the following. In order to consider whether or not Ms Dillon performed her duty, as your Honour articulated, one would have to have regard to the content of the manual in the performance of the duty or satisfying the interest. Now, our learned friend’s submissions - - -
HAYNE J: Sorry, would have to have regard to the manual?
MR ALEXIS: The content of the manual which our learned friends have referred to in their written submissions. Could I invite your Honours to go to page 350 of the second appeal book and there your Honours will find reproduced the document entitled “Corporate Governance and Financial Management Manual for Catchment Management Authorities”. At page 204 of the first appeal book at line 40, Ms Dillon told the primary judge that she received this document shortly after she was appointed as a board member. There does not seem to us to be any express reference to the manual in the relevant statute, or in the schedules to the statute. However, it was a document that was before her as a director at the time. At line 50 on page 350 - - -
FRENCH CJ: I note that it included at 380 a direction for “Financial Limits of Authority”, which does appear to be a statutory document because it ends up with a ministerial statement –
I . . . HEREBY set the financial limits –
et cetera, and then it picks up under “Important Instructions” codes of conduct and ethics, et cetera.
MR ALEXIS: Yes. Could I draw attention to what is said to be an attachment to this manual at page 350, lines 50 and following and the first two bullet points identify a constitution and a code of ethics and conduct. My learned friend’s written submissions do identify the relevant parts of this document. Could I, however, go to the particular provisions and firstly on page 353, with respect to members, your Honours see in the second sentence at line 10:
Members are expected to behave with the highest ethics, always act within the law and follow Government directions and policies.
Then, in the constitution document starting at 362, there is particular reference on page 365 to the general duties of members, and the expression “member” is defined in Schedule 3 Part 1 to the Catchment Management Authorities Act to include a board member, and your Honours see in paragraph (a) at line 45 a reference to acting –
honestly in the exercise of powers and discharge of functions.
Then in (b):
the exercise . . . of functions, must exercise the degree of care and diligence that a reasonable person in a like position would exercise.
Then finally on this subject matter, could I - - -
HAYNE J: Just as to diligence, diligence of a board member would extend, would it not, to drawing to the attention of the board, or the chair of the board, matters which may adversely affect the organisation of which the board member is a director?
MR ALEXIS: Yes, we would accept that, and the “Code of Ethics and Conduct” document starts at page 370, and could I draw particular attention to what is said from about line 22 and following:
Board members are expected to perform their duties in a professional and responsible manner and ensure that decisions and actions are reasonable, fair and appropriate to the circumstances, are based on a consideration of the relevant facts, and supported by adequate documentation.
Further down, at about line 55, there is reference to –
The Board’s work must reflect a high standard of accountability, transparency and fairness.
I think that identifies, for present purposes, the particular matters that I wanted to draw attention to. Now, if, as we submit, the collection of these documents indicate, if Ms Dillon was obliged to act honestly and with care and diligence and in a reasonable manner and with fairness in a way that was appropriate to the circumstances then, in our submission, by publishing defamatory matter, she failed to conduct herself in a manner consistent with those requirements.
Can I provide your Honours with four points to support that submission? The first is that she conveyed the concerns regarding the general manager and Mr Boland as a board member with Mr Hart’s imprimatur when, as his Honour the primary judge found, he held no such concern and did not convey such a concern to Ms Dillon. The second point is that in conveying the defamatory matter to Mr Croft, she did not believe it, she had seen no evidence of it. She did not know that it was common knowledge.
So, in our submission, that can hardly be conduct in discharge of a duty or in satisfying an interest by acting reasonably fairly and appropriate to the circumstances, particularly when the ethics manual requires reference to relevant facts supported by appropriate documents. The last matter is that in conveying the defamatory matter to Mr Croft, she did not fairly seek to prevent what might be said to be the corrosive effect of a rumour because if she was wishing to fairly to do that, one would have thought that she would identify those who were responsible, or involved in, or who perpetrated the rumour in the first place, and we know no matter what version one looks at of Ms Dillon’s evidence, in terms of what she conveyed to Mr Croft, she never identified the three staff members, Mr O’Brien, Mr Mills and Mr Pitman.
FRENCH CJ: Has the Board’s manual and code of conduct and so forth been invoked against the respondent in the way you just did at any earlier stage of these proceedings?
MR ALEXIS: The manual was tendered through the respondent. I have given your Honours the reference to - - -
FRENCH CJ: Yes, I appreciate that. Was it invoked against her in the kind of argument you have just put, that she was in breach of the - - -
MR ALEXIS: The only answer I can give to your Honour is no, and the reason for it is that the particular articulation of applicable duties, as we see in our learned friend’s submissions, point up the significance of those matters. Of course, one has to have regard to the significance of all of those matters, and importantly we would say when one is speaking of duty and content of duty and satisfying an interest and if one is looking at her conduct and whether she satisfied that for the purpose of there being an occasion to protect the impugned publication, one has to also ask whether she complied with the rigours of those provisions and, in our submission, she did not.
FRENCH CJ: Well, if it were a legitimate point to take, it would be the sort of point one would have expected to have seen in a written reply.
MR ALEXIS: Yes, your Honour, I have to accept that. Those are the matters that I wish to raise in reply.
FRENCH CJ: Yes, all right, thank you. The Court will reserve its decision. The Court adjourns until 9.30 tomorrow in Canberra and 9.30 tomorrow in Sydney.
AT 2.39 PM THE MATTER WAS ADJOURNED
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