Papaconstuntinos v Holmes a Court [2012] HCATrans 103 (10 May 2012)

Last Updated: 10 May 2012

[2012] HCATrans 103

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S319 of 2011

B e t w e e n -

TONY PAPACONSTUNTINOS

Appellant

and

PETER HOLMES A COURT

Respondent

FRENCH CJ
HEYDON J
CRENNAN J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 10 MAY 2012, AT 10.01 AM

Copyright in the High Court of Australia

MR T.K. TOBIN, QC: May it please the Court, I appear with MR R.K. WEAVER, for the appellant. (instructed by Slater & Gordon Lawyers)

MR B.R. McCLINTOCK, SC: May it please the Court, I appear with my learned friends, MR R.W. POTTER and MR M.J. LEWIS, for the respondent. (instructed by Baker & McKenzie Solicitors)

FRENCH CJ: Thank you. Yes, Mr Tobin.

MR TOBIN: Your Honours, I have taken the liberty of providing a chronology of some of the transcript references. I did so in view of what Sir Owen Dixon said in his dissenting judgment in Guise v Kouvelis, that in a qualified privilege case, and this is one, the Court must:

make a close scrutiny of the circumstances of the case, of the situation of the parties, of the relations of all concerned and of the events leading up to and surrounding the publication.

That is a very powerful statement, your Honours, in a context where here there is a defence of qualified privilege which was allowed by her Honour the learned trial judge and rejected by the Court of Appeal. The basis of the qualified privilege defence – yes, I beg your pardon. I had better make sure what side of the Bar table I am addressing from.

Your Honours, what seems to us to be significant about the Court of Appeal decision is that it proceeds on a basis largely in the judgment of Justice McColl that unpicks obiter in a very vigorous dissent by Justice McHugh in Bashford’s Case. I will come to that shortly because the task that we have as appellant is to convince your Honours that our formulation of the qualified privilege defence is correct in law, that is, that in a case where a defendant is purely pursuing personal interest, where there is no issue of duty, in a case of that kind, the common law – and I say this without flourish – in its wisdom wants to impose certain limitations upon the availability of that protection and we wish to convince your Honours that what we have called the “reasonable necessity test” is a test which is good at common law, which has been recognised in this Court and in the common law jurisdictions and that a concomitant of that is something that Justice McHugh referred to his dissenting decision in Bashford, ordinarily – and his Honour said “ordinarily” – that would require, if it is a volunteered statement solely in defence of, for the protection of a personal interest, that will ordinarily require pressing need. Now, the base of that, your Honours – and I will come to it after perhaps I canvass some of the factual material - - -

FRENCH CJ: Are we entirely outside the territory of duty in this case? It is all about interest?

MR TOBIN: Entirely, your Honour.

CRENNAN J: Or personal interest?

MR TOBIN: It is purely personal interest.

CRENNAN J: In as much as Justice McColl, in her judgment, spoke of pressing and dealt with the dissenting judgment on that basis, as you have said, it is right, I expect, for us to take that as a proxy for the reasonable necessity argument?

MR TOBIN: Well, your Honour, I do not believe that her Honour did see it that way. I think the difficulty is that in Bashford’s Case Justice McHugh delivered a very vigorous dissent, but, as I said in the Court of Appeal, and with great respect to his Honour, it was a brutum fulmen, an empty thunderclap, because the majority, the holding of the court in Bashford, was a duty and interest case. So Justice Gummow I think summarised it by saying, well, this is a case involving contractual obligations between the publisher and the subscribers, so his Honour’s dissent in a sense is not helpful, but we do not resile from pressing on the Court that the approach that his Honour took, the voluntary statements purely in pursuit of personal interest, was in fact a correct approach of common law.

The way we have structured the argument, your Honours, is to tease out from the authorities a reasonable necessity test. Norton v Hoare, which was a famous case in its day, I imagine, involving Ezra Norton, the publisher – John. I am being helped considerably by Mr McClintock, your Honours. Your Honours, the model that that case provides is this. In Norton’s Case there was a savage defamatory attack upon the defendant by Mr Norton which threatened his commercial interest and the High Court considered and found that a defence of qualified privilege would be available for a person, the defendant in this case, acting in legitimate defence of his commercial interests and what they introduced into the equation was concepts of reasonable necessity which clearly their Honours derived from a defence of necessity of criminal law.

I think in a footnote – I do not enter the battle list of the criminal law, but what the Justices did made it plain that when you look at defending oneself against an attack, the defence must only be proportionate, that which is reasonably necessary. I do not say that is at criminal law. I say that is the way the Justices decided Norton’s Case in the context of a libel action.

KIEFEL J: But the requirements of the criminal law in that regard do not translate very well into the area of defamation law and I do not think any authority subsequent to Norton v Hoare has ever suggested that there be some sort of proportionality test to assess whether or not a response to an attack goes too far, and – I am sorry, I should allow you to comment on that.

MR TOBIN: I am sorry, your Honour, yes. Perhaps I will come to the authorities. I do not think there is one right on point.

KIEFEL J: But just in relation to your test of reasonable necessity that you posit, if it is relevant – and there is question about that – it is relevant, is it not, in the area where the court is assessing a response to an attack where the question is whether or not the response has gone too far? I do not really see how it applies in the present case, other than giving you some sort of springboard for pressing need, but I think the problem is its relevance.

MR TOBIN: Your Honour, if I could touch on the factual background, because I think it does help to explain why this protection of interest is relevant. In 2005 in August the respondent, Mr Holmes à Court, and a partner, Mr Russell Crowe, who is an actor, wanted to take over the South Sydney Rugby District League Football Club, which was no doubt a matter of some intense debate both in the football club and in its supporting leagues club, if I can shortly sketch the model of Sydney sporting clubs in the football field, and in 2005 in August Mr Holmes à Court said that he did a due diligence and having done a due diligence about the club, he came to a suspicion that the son of the appellant had been paid too much money and that there was, it seemed to him, suspicions attaching to the payments to the son by the club.

No defence of truth was pursued, although I think one was filed. No defence of truth was pursued at trial. This issue was not contended for by the respondent. However, your Honours, between August when Mr Holmes à Court discovered these records which made him suspicious, and two days before the March 19 general meeting which was to cast the yes/no vote as to whether the takeover of the club would succeed, between those two dates Mr Holmes à Court did not raise the question of funds that he suspected might flow to the CFMEU, or to Mr Papaconstuntinos, my client, from events that had happened in 2004.

So the period of employment was 2003/2004. These events took place in March of 2006. The reason that Mr Holmes à Court said he had not raised this suspicion with the CFMEU, prior to the eve of the vote, was that he did not consider it relevant and because there were not, he thought at that stage, CFMEU members actively opposing his proposed takeover.

Now, what that distils, with respect, your Honours, is the identification, as Mr Holmes à Court saw it, of his interest in communicating with the secretary of the CFMEU. As your Honour the Chief Justice put, it is not a duty case so there is no colouring of a sense of obligation or civic duty, having, if I can put in quote marks, “discovered or come across material that made him suspicious”, there is no case mounted by the respondent that he was underneath activated by a sense of civic responsibility or of duty. He was purely motivated, as he said, by the desire to win the vote on the Sunday.

The silence with which he treated the bases of his suspicion continued after he took over the club, because the vote was successful on the Sunday, and he took over the club in June 2006 when he had it in his power to investigate what he had regarded as the suspicious activities, but by June he said that these were no longer relevant. Matters had moved on and he was not interested in looking any further at allegations against the CFMEU or my client or my client’s son. Again, your Honours, that focuses, if I may say, on what – I will add the colour – was naked, that is, unadorned self-interest, that he wished to win the vote two days after sending the letter and take over the club.

FRENCH CJ: What does self-interest have to be adorned with?

MR TOBIN: Well, naked in this sense, your Honour, that – I was reminded of what Lord - - -

FRENCH CJ: It is not adorned with duty? We are out of that territory.

MR TOBIN: Yes, your Honour, it is not adorned with duty, but also, as a witness, the respondent did not dress it up in any other colours. He just said he wanted to win the vote, therefore he took the course he did.

FRENCH CJ: Well, the respondent links imputation (a) to (b) and (c) on the basis that one was connected to the other and (b) and (c) were, as it were, an explanation of what was going on covered by (a).

MR TOBIN: Yes. If I may say, your Honour, Justice Allsop, the President in the Court of Appeal, put his finger on really what was the characterisation of these events. He wanted Mr Ferguson, the secretary of the union, in the couple of days before the vote to bring my client to heel. Now, that is in 331 of the appeal book, your Honours. Your Honours see in paragraph 9 on page 331 that his Honour the President sets out there the looming meeting, the fact that:

Mr Papaconstuntinos was an active opponent of [what he calls] Mr Holmes à Court’s interests. The interest in the sending of the matter complained of was the real possibility or expectation that doing so would bring about the intervention of Mr Ferguson, or create circumstances to make it more likely that the intervention of Mr Ferguson would be brought about, in order to stop Mr Papaconstuntinos ringing and contacting people. Mr Ferguson had previously said that the affairs of the club were not union business. The letter might reasonably be seen to make them so and cause Mr Ferguson to attempt to bring Mr Papaconstuntinos to heel. That the matter complained of was sent two days before the vote at the meeting did not deprive it of possible effect. Any intervention by Mr Ferguson in those two days may well have had some effect; in a close vote, some effect might be decisive.

Now, his Honour does not mix words. The passage, if I may say, in a commercial context is full of rail politic. It suited Mr Holmes à Court to publish a defamatory imputation of a suspicion in order to get the secretary of the union to intervene against one of his members who, as it happens, was on the opposing side in what was a commercial cultural dispute for the takeover of the club.

BELL J: Was there this added aspect to it on Mr Holmes à Court’s evidence that in a context in which he had come to learn that the appellant was, on his account, spreading deliberate misinformation concerning the bid it had occurred to him that the reason for that was because the appellant was concerned that if the bid was successful the improper dealings relating to the payment of the sum would be revealed?

MR TOBIN: Yes, yes.

BELL J: So, it is in that context that his interest in enlisting Mr Ferguson’s support to prevent the further dissemination of misinformation is linked to the corruption imputations (b) and (c)?

MR TOBIN: Your Honour, that is what he said in evidence. The Court was entitled – and we would invite your Honours to approach it this way – to look at the surrounding circumstances, to proceed on the principle that the assessment of this limb of a qualified privileged defence is to be weighed up objectively. In other words, it did not matter what Mr Holmes à Court thought he was doing, the task of the Court is to characterise accurately that which he was in fact doing. Now, the silence prior to 17 March about the CFMEU and the salary paid to my client’s son and the silence thereafter, and the absence of any such investigation or any interest, any interest – he said it is not relevant anymore. The caravan had moved on, I had won the vote.

KIEFEL J: What he does or does not do after the event might have been relevant to motive, but I do not see how it is relevant to whether or not there was any interest or duty.

MR TOBIN: Well, your Honour, the reason we would say that it is relevant is that the Court looks at the purpose lying behind – not on an issue of malice but the purpose for which the protection of the qualified privilege defence should be extended to that particular defamatory communication. If one looks to the purpose, we say that it is an error to try to find the purpose in the motivation of the respondent here, the motivation of the publisher of the defamatory matter; one has to look at the purpose in the context of whether or not that serves, in general terms, the public good.

BELL J: The matter I am taking up with you is the significance you attribute to the silence in the period leading up to March 2006, and the silence thereafter.

MR TOBIN: Yes, yes.

BELL J: If the consideration is objective in the way you are contending for, what is the significance of inviting our attention to those matters going to Mr Holmes à Court’s motives?

MR TOBIN: Yes. Well, the significance is whether Mr Ferguson, as the secretary of the union, really had an interest in receiving this communication from Mr Holmes à Court. Now, her Honour - - -

CRENNAN J: I thought that was not an issue here for us.

MR TOBIN: Well, your Honour, at the end of the day though we would submit it has to be because Mr Holmes à Court urges that he had an interest in achieving his objective with regard to the outcome of the vote.

CRENNAN J: What I mean is I apprehended – and I may be wrong, so please correct me if I am – that the case was conducted below on the basis that there was not a contested issue that the recipients had an interest in receiving information.

MR TOBIN: But, your Honour, if I may say, this seems to me to be when Justice McCallum summarised it aptly – the question is whether the communication on this occasion at that time on that topic, that is, the communication on 17 March, was one where that interest would be upheld. In other words, I think your Honour put it to me in the special leave application, there would not be an issue about the CFMEU having an interest in the activities of CFMEU officials qua officials. That would be clearly relevant. But what her Honour did at first instance, and we would support this, her Honour focused attention on the question – and I perhaps should take your Honours to that and then to the other judgment in the Court of Appeal. The ground of appeal that I should flag, your Honours, is at page 390 of the appeal book at ground number 5 which deals with the question that:

The Court of Appeal erred in finding that the defendant at trial had established that the requisite reciprocity of interest existed on the occasion of that communication –

So that ground of appeal covers, in a sense, what your Honour Justice Crennan has put to me, and I think if I could take your Honours to pages 288 and 289 of the appeal book where Justice McCallum came to the particular view, it begins at paragraph 63 of her Honour’s judgment. May I preface it, your Honours, with this observation. The evidence establishes that some weeks prior to the writing of the letter of 17 March there was a conversation between Mr Ferguson, the union secretary, and Mr Holmes à Court, the respondent, and the subject matter of it was a complaint by Mr Holmes à Court that people he called union officials, including the appellant, were involving themselves in the South Sydney takeover fight.

Mr Ferguson said that the union was neutral with regard to the takeover fight, the union was not taking any part supporting any particular side in the fight. If individual union members and officials chose to side with one side or the other, then that was their private province and he was not going to interfere with it. So the preliminary to her Honour’s conclusion about interest was, well, Mr Holmes à Court has been told by the union secretary the union is not in this and union members are free to canvass, politic, et cetera. One would have thought in a democracy, a given, one would have thought in a commercial dispute about the takeover of a club, again a given.

But her honour says at 63 that she rejected, because of this issue of voluntariness that in effect Mr Holmes à Court had volunteered this letter and had not been asked for it, her Honour found that Mr Ferguson had not been asked for this information and that has not been contested at the Court of Appeal or here:

Further, I do not think the CFMEU had any special interest in receiving information about the campaign on account of a long association with the club. Accordingly, there was no occasion for Mr Ferguson to receive information about the alleged misinformation –

Here her Honour took the view that the union boss does not have a warrant to interfere with the private activities of members of a football club and, second, as Mr Ferguson gave uncontested evidence, the CFMEU itself had no financial direct or indirect interest in the football club and was not involved in any way in the yes/no campaign.

So then, your Honours, in 66 and following her Honour deals with the question that your Honour Justice Bell put to me, which is in 66, he describes Mr Jamie Papaconstuntinos, his employment at the club, Mr Holmes à Court’s knowledge about the nature of the salary he was being paid, the suggestion that the sponsors of the club were construction companies and they may have had a motive of keeping the construction workers’ union happy. Her Honour says, they “were inherently suspicious”. That did not provide, as I put to your Honour Justice Bell, a springboard for the introduction of a duty or of a civic obligation.

Mr Holmes à Court did not pursue that, he simply continued with his complaints to Mr Ferguson in a desire to derail, perhaps, the no campaign. In 68, your Honours - - -

CRENNAN J: What about 67?

MR TOBIN: I do not think that is a correct statement, your Honour. I think the defence of qualified privilege at common law proceeds upon the premise that what is published is defamatory and not true. I do not imagine, your Honours, that one can, as it were, reconstruct an occasion by saying, yes, but what if it were true? I do not think that is the way the courts have approached it, and I would not adopt what her Honour says there.

In 68, your Honour, and this is the emphasis that I gave earlier, her Honour found it:

difficult to accept is that Mr Holmes à Court had an interest that justified his publishing information on that subject to Mr Ferguson at the time that he did.

BELL J: That, of course, was a conclusion contrary to the acceptance by the appellant’s counsel at trial that he did have that interest?

MR TOBIN: Yes, your Honour. Her Honour said that “I disagree.” Of course, this was, I think, as in Guise v Kouvelis, Sir Owen Dixon analyses the functions of the judge and of the jury or the fact finder. So this is very much on an analysis of the fact a conclusion of law for her Honour to reach and she went boldly where others may have feared to tread.

CRENNAN J: So, do we take from that an implication that her Honour accepted the requisite reciprocity or does she come back to that point?

MR TOBIN: No, your Honour. I think what her Honour is saying is – her Honour is really pointing to the disjunction that I began with, the reciprocity would exist, and Justice McColl really touches on this with a colouring of a duty case – I will come to her judgment shortly – but the reciprocity does not exist for that occasion, in other words, the defence of qualified privilege is not, as it were, peripatetic. It is confined to the certain stances of the particular publication and whether the common welfare and good of society is satisfied at the end of the day. Her Honour went on then to say at 69 that she had difficulty in coming to the view that:

there was a pressing need for Mr Holmes à Court to protect his interests . . . by volunteering the defamatory information –

concerning the employment – and, of course, I will come later, your Honours, to the notion of “pressing need” – but, as I flagged earlier, it does derive from what Justice McHugh said in Bashford and if one goes, as we did, to Toogood v Spyring, it seems to us to be pretty powerfully supported if you actually knock the barnacles off the language of Baron Parke and appreciate it for the force it had.

KIEFEL J: Her Honour deals really in paragraphs 68 and 69 with imputations (b) and (c) because they relate to the conduct.

MR TOBIN: Yes.

KIEFEL J: Her Honour does not deal separately with imputation (a), which is really in a different category, is it not?

MR TOBIN: Yes, I think so, your Honour. Paragraph 63 does that. I think what her Honour says is, well, having been told by the union secretary that he was not going to intervene because it was not of an interest to the union, the outcome of this fight, and the individual union members and officials were at liberty to take whatever side they wanted.

KIEFEL J: So, 62 and 63 we take as her Honour saying Mr Holmes à Court had no interest in giving the information about the part Mr Papaconstuntinos played in giving misleading information and Mr Ferguson had no interest in receiving it, both ways?

MR TOBIN: Her Honour does not put it as pithily as that, but I think that is it, your Honour.

KIEFEL J: It is 68 and 69 that there was an interest on the part of Mr Ferguson to receive the information about the other conduct but that there was no pressing need. That is where the pressing need comes in on the part of Mr Holmes à Court to publish it.

MR TOBIN: Your Honour, could I add to the first part of what your Honour said as well, which is that as a generality a State secretary of a union would have an interest in the conduct of union officials, and of any suggestion of corruption. That would be at large, if I may say. What Sir Owen Dixon points out and I think Justice McHugh did also in another passage in Bashford, is that in order to satisfy the requirements of a qualified privilege defence you have to look at the particular transaction. In other words, what is the correct characterisation of this particular transaction between Mr Holmes à Court and the union secretary?

It would seem to us, your Honours, that the correct characterisation of it is that Mr Holmes à Court was, in effect, saying, I want you to intervene against Mr Papaconstuntinos and shut him up for the next couple of days, until we win the yes vote. That is, in fact, what was happening. And Justice Allsop in the passage - - -

KIEFEL J: Forgive me for interrupting. I just want to understand what issues we are really dealing with. Her Honour determined imputations (b) and (c) on the basis of what appears in 68 and 69, and in that respect, the critical matter was that there was no interest on Mr Holmes à Court’s part to publish, at the time he did in 68, and then in 69 her Honour says, there was no pressing need; that is the critical question, and that is the gravamen of your grounds of appeal.

MR TOBIN: Yes.

KIEFEL J: But the question of pressing need is not relevant to imputation (a) and I think this is a point made by the respondent in his submissions. It has nothing to say about imputation (a). And the Court of Appeal found that imputation (a) was subject to qualified privilege. So are we dealing with imputation (a), or are you accepting the Court of Appeal, in that regard?

MR TOBIN: No, your Honour. Ground 5 of the appeal is based upon perhaps two propositions. One is that in seeing whether defence of qualified privilege is made out one really must look at the defamatory matter as a whole, which is what the Court of Appeal - - -

KIEFEL J: I see, no reciprocity of interest?

MR TOBIN: Yes, your Honour.

KIEFEL J: So you are saying that her Honour was correct about Mr Ferguson’s lack of interest in it?

MR TOBIN: Yes - - -

BELL J: Can I just take up with you whether it is right to say that her Honour concluded that Mr Ferguson did not have an interest in receiving the material in the letter in respecting the spread of misinformation. This is at 62 and 63.

MR TOBIN: Paragraph 63, yes, your Honour.

BELL J: If you go to 62, she summarises counsel for the appellant’s submissions at trial and those relate to the interest in conveying the information in the matter complained of and she says she has come to an opposite conclusion to the conclusion urged upon her by the appellant and it follows, there is a conclusion that Mr Ferguson did have an interest and, as I read it, her Honour’s remarks in 63, 64 and following, seem to be consistent with a view that Mr Ferguson had an interest, notwithstanding that the CFMEU may not have had, as it were, taken sides in the dispute.

MR TOBIN: Yes.

BELL J: He, nonetheless, had an interest in knowing that an employee of the CFMEU was said to be retailing misleading information in connection with the vote.

MR TOBIN: Your Honour, in paragraph 63, the last sentence – I do not know whether it helps or mystifies:

Accordingly, there was no occasion for Mr Ferguson to receive information about the alleged misinformation that Mr Holmes à Court believed was being spread –

BELL J: But, what about 64?

MR TOBIN: Yes, well.

BELL J: What about 64 and the final sentence in 62?

MR TOBIN: Yes, well, that is to do with the - - -

BELL J: The matter complained of.

MR TOBIN: Yes, that is so, your Honour.

CRENNAN J: How did this point play out in the Court of Appeal?

MR TOBIN: Well, in the Court of Appeal, the focus was really on the two other imputations and, as your Honour put to me during the leave application, the question, well, where does that leave imputation (a), but the approach that we would take is this. Just as the Court of Appeal and, for that matter, the respondent wanted to knit together imputation (a), the misinformation, the interest he had in winning the vote, with what was said to be the reason why the appellant was so fiercely opposed to the takeover of the club, those two were married together and, in a sense, your Honours – and maybe I should look at this when my learned friend is addressing – but we would approach the problem, your Honour, not, as it were, by slicing off the different imputations, because what really is involved here is - - -

KIEFEL J: I am sorry, what do you mean by that?

MR TOBIN: Well, what is involved here is a single transaction, that is - - -

KIEFEL J: No, it is not. It is in three imputations.

MR TOBIN: It is that, your Honour.

KIEFEL J: And each imputation is a separate cause of action and you have to consider the occasion for each imputation. The occasion on which qualified privilege – the occasion is not a point in time.

MR TOBIN: Yes.

KIEFEL J: The occasion is simply a way of saying that qualified privilege attaches.

MR TOBIN: Yes.

KIEFEL J: You have to consider each of them individually.

MR TOBIN: Your Honour, this was litigated under the uniform Defamation Act in which the publication of the defamatory matter, as at common law, is the cause of action. Now, to compound the difficulty - - -

KIEFEL J: Publication of each imputation.

MR TOBIN: Well, no, your Honour. I think I could turn up the passage, I think it probably is section 8. I think it is the publication of defamatory matter and the reasoning behind it was that the focus in the 1974 New South Wales Act, which was a sort of model for the Uniform Act, had become so preoccupied with the imputation, and its publication as the cause of action, that they decided – section 8 says, your Honour, that:

A person has a single cause of action for defamation in relation to the publication of defamatory matter about the person even if more than one defamatory imputation about the person is carried by the matter.

KIEFEL J: I see. I misremembered, I was thinking of 1974. Thank you.

MR TOBIN: Yes, your Honour. Which leads, we would submit, to this result for the - - -

FRENCH CJ: And the matter you pleaded was the letter in Schedule A.

MR TOBIN: Yes, and for your Honours’ consideration of this we would say that, as did the Court of Appeal, your Honours would look at this with respect to what your Honour put to me as a single transaction in this sense, your Honour, that one needs to characterise, as I said earlier, that which was happening, which sounds trite perhaps but the courts have dealt with this on a number of occasions.

In Macintosh v Dun, Lord Macnaghten reflected on that in a way which was taken up by Justice Gummow, as I recollect, in Bashford, and I will take your Honours to that shortly. But if I could go back to perhaps a burr in my saddle because this is what Justice Allsop said, again at page 331 at sidenote 45, and it is in some ways a challenging proposition. The President said:

The letter might reasonably be seen to make them so –

that is, make the affairs of the club the affairs of the union –

and cause Mr Ferguson to attempt to bring Mr Papaconstuntinos to heel. That the matter complained of was sent two days before the vote at the meeting did not deprive it of possible effect. Any intervention by Mr Ferguson in those two days may well have –

affected the outcome of the vote. Now, we would say, with great respect to his Honour, that the existence of an occasion of qualified privilege cannot be generated by the type of letter that was written to Mr Ferguson. That requires proper scrutiny and scrutiny of whether, as his Honour said, it had generated in the union a necessary interest, if I can use that term loosely, in the allegations that he was making.

So if I could put it perhaps like this, your Honours. The authorities teach us that the purpose of a publication is one of the indicia of whether it would attract qualified privilege and in looking at purpose, one looks at all of the conduct, all of the relationships, the totality of relevant factual matter that would come before the court and then, your Honours, in examining that question, the court attempts to characterise the conduct and see whether in an interest case, whether in an interest case as here, the conduct should attract the protection of the law for a defamatory publication which is a damaging incursion upon the ordinary rights of another citizen and in characterising the conduct, the court would need to come to the conclusion that this was for the common welfare and convenience of society.

Now, your Honours, if I may put it bluntly, it would seem, in my submission, an astonishing outcome in a commercial context where there is a vote of members of a relevant association with regard to the future of their club for it to be said that a defendant who has an interest solely in taking over the club is at liberty – no, is justified at law – is justified in publishing defamatory allegations about a plaintiff and a plaintiff’s family solely for the purpose of winning the vote, which, having won, he says these issues are no longer relevant.

BELL J: What is the significance of the latter? The fact that he may have, after succeeding, not have pursued a matter which he regarded as resolved hardly - - -

MR TOBIN: I think it helps this way, your Honour. Does it not point to what I said – perhaps I was repetitive – that Mr Holmes à Court recognised that the sunrise and sunset for him was 17 March and 19 March, the eve of the vote and the taking of the vote. If he was successful, he did not care beyond that. Your Honour, I do not criticise him for that. It seems to me to be very frank.

CRENNAN J: But one of the circumstances – and I think Justice Bell has put this to you – in which the letter was written was that he formed the belief that the action of your client was influenced by a desire to prevent new blood taking over the club and investigating the circumstances of the payments to the son, Jamie.

MR TOBIN: That is, your Honour, his motive.

CRENNAN J: But it is one of the circumstances in which the letter was written which explains, one would have thought, the post-vote silence and lack of concern.

MR TOBIN: Perhaps I could put it this way, your Honour. He said that, obviously in his view, the appellant was resisting the takeover of the club because if he did take over the club successfully, there would be an investigation of the history of two or so years before. That is what he said was being involved. That was what we would see as the circumstance, and the reality was that that was not, we would submit, a moving factor – and I do have to convince your Honours of this – that was not a moving factor. The moving factor, the dynamic in the publication of the defamatory matter, was to bring about the intervention of Mr Ferguson to shut up, if may say, Mr Papaconstuntinos.

Now, there is a hint of this, your Honours. It is not brought out in all its colour perhaps, but when the defendant spoke with Mr Ferguson after the letter was sent – I just seem to have mislaid my reference here. I will tell your Honours what the evidence was.

KIEFEL J: Does not the post-vote silence tend to reinforce a conclusion that Mr Holmes à Court’s interest was in stopping the misleading information, that is, he was interested in what was relevant to the vote itself, and then I quickly add, we are not talking about motive. It is not relevant to this appeal.

MR TOBIN: No.

KIEFEL J: The question of interest or duty is one objectively - - -

MR TOBIN: Purpose is relevant to that, your Honour, and I have - - -

KIEFEL J: But that is purpose objectively ascertained.

MR TOBIN: Yes, your Honour.

KIEFEL J: It is not what his purpose in the sense of motive. That is what we have to bear in mind.

MR TOBIN: That is so. I accept that, your Honour, yes.

KIEFEL J: The interest that objectively we are concerned with is his interest in having Mr Papaconstuntinos brought to heel, as the President said, and Mr Ferguson’s interest and the union’s interest in an employee. That is what we are concerned with, and it is because those interests can be identified that pressing need becomes the basis upon which her Honour the trial judge’s decision turned.

MR TOBIN: Could I say as a prelude to that, though, your Honour, that the characterisation of the conduct seems to us to be central because it is upon that characterisation that the court would then apply a question broadly put as public policy, whether it is in the interests of society to permit that to be a protected communication.

KIEFEL J: The interests of society might be a statement about the purposes of qualified privilege and that it involves a balancing of interest in society. It is a conclusion. It is not some sort of separate test that is applied.

MR TOBIN: Your Honour, I know that, if I may say, with respect – I think Justice Heydon referred to that, if my memory is correct, in Aktas with a reference to Justice McHugh, but as I looked at the authorities, the common way the courts apply it –and I think it was done in Cush v Dillon – is to have regard to that question of public policy at an earlier stage. In Cush v Dillon [2011] HCA 30, paragraph 12 of the joint judgment of your Honour the Chief Justice and Justices Crennan and Kiefel, and your Honour will appreciate this struck me as pointing to how public policy enters this issue - - -

KIEFEL J: No, it says it is based upon it. It does not say that there is a separate test for qualified privilege. It is simply the foundation for it that gives it its explanation. Cush v Dillon otherwise holds that the question of whether or not there is a privilege is objectively ascertained and the principle question that was raised there was relevance.

MR TOBIN: Yes, but your Honour, the way I have addressed your Honours and I think this is consonant with Toogood v Spyring and the line of authorities that we have discussed from that is to say that the two issues that take place are the characterisation of the conduct and then to ask the question whether that conduct so characterised ought or ought not to attract the protection. Now, if I can just refer your Honours to Lord Macnaghten in Macintosh v Dun in the Privy Council (1908) CLR, there is a passage that Justice Gummow took up in the case of Bashford. It is the last paragraph where his Lordship says:

Then comes the real question - - -

KIEFEL J: I am sorry, which page is this, Mr Tobin?

MR TOBIN: Page 306, your Honour.

KIEFEL J: Thank you.

MR TOBIN: The last paragraph:

Then comes the real question: Is it in the interest of the community, is it for the welfare of society, that the protection which the law throws around communications made in legitimate self-defence, or from a bonâ fide sense of duty, should be extended to communications made from motives of self-interest by persons who trade for profit in the characters of other people?

Justice Gummow took that up as the distinguishing factor between Bashford’s Case and the facts in that and Macintosh v Dun.

KIEFEL J: Norton v Hoare followed – I mean, chronologically it was after Macintosh v Dun and it is not too difficult to read in Norton v Hoare a disagreement with the approach of the Privy Council in Macintosh v Dun.

MR TOBIN: Yes. Your Honour, if one reads - - -

KIEFEL J: I know that attempts were made in Bashford to reconcile the two but it was a labour to try to do it.

MR TOBIN: I am left with the relative empire there in the Privy Council which, I think, is potent still, your Honour.

CRENNAN J: I think it is fair to say, too, that Justice McColl in her decision in the Court of Appeal spent a good deal of time in those reasons in demonstrating that the way in which volunteers were treated had certainly changed over time and that they perhaps did not have the access to the defence of qualified privilege in the 19th century and in the early 20th century that they would have now.

MR TOBIN: Your Honour, in one sense, the issue that is raised by volunteers pursuing personal interest – self-interest - - -

CRENNAN J: I should have added that in, volunteers pursuing their self-interest.

MR TOBIN: Yes. It does raise, if I may say with respect, a difficult question of the limitation which the common law should impose upon what would otherwise be a freedom to publish the defamatory matter. We have attempted to analyse that against the background of Toogood v Spyring, and I will not read to your Honours what we have put in the written submissions but - - -

CRENNAN J: Certainly exigency means pressing necessity.

MR TOBIN: Yes.

CRENNAN J: For what that is worth.

MR TOBIN: When one looks at the number of times that Toogood v Spyring is quoted in the Court, I know it is not a bit of legislation, but it is a pretty potent reminder of an era when the law developed or was fixed by the judges rather than by the legislature at large.

FRENCH CJ: Are these epithets anything more than particular applications of a concept of reasonableness?

MR TOBIN: I think it is, with respect, your Honour.

FRENCH CJ: How so?

MR TOBIN: Well, your Honour, the question of reasonableness as we have posited it is married to necessity. In other words, the judgments - - -

FRENCH CJ: Both evaluative terms. Or somebody once called need a more emphatic form of want. Necessity is an evaluative concept, is it not?

MR TOBIN: Yes, of course, your Honour.

FRENCH CJ: It is not a law of physics or something.

MR TOBIN: But could I say this about necessity and the difficulty of applying this in the field of qualified privilege. In whose shoes do we stand in evaluating the question of necessity? From Mr Holmes à Court’s point of view it was necessary to him, he thought, in order to win the vote to shut up his opponent. His concept of necessity, in the service of his own interest, was what would be required to bring about the result which I want. On the other hand, your Honour, if I could address what your Honour the Chief Justice has put to me, we have argued in our submissions that reasonable necessity, with the echoes from self-defence et cetera, but reasonable necessity is a necessary combination of those two concepts, that if reasonableness is purely the guide to it, one is generally faced with this difficulty.

In self-interest cases, in interest cases where the person pursues a commercial interest as here, the courts are always alert to the fact that self-interest unconstrained is likely to forgive damage to another person’s interest, in this case reputational interest, is likely to allow people to, as it were, be satisfied that they are pursuing what they think is a legitimate interest, as Mr Holmes à Court did, he would take over the club and he could not understand why people would oppose it. So that notion - - -

FRENCH CJ: But you are responding to a subjective notion of reasonableness, are you not?

MR TOBIN: No. In the case of Mr Holmes à Court, yes - - -

FRENCH CJ: The way you are putting your argument at the moment?

MR TOBIN: Yes, your Honour.

FRENCH CJ: But I was not putting that to you.

MR TOBIN: No. Yes, your Honour. Which brings me, if I may, back to, I hope, the answer to your Honour’s question that the combination of those two concepts, reasonable and necessary, which flows out of Norton v Hoare, et cetera, from that line of authorities that we have discussed, does provide a necessary protection, we say, to what is a very special category of qualified privilege, interest cases in which there is no element of duty.

If there is an element of duty, of course. What is immediately present, if the Court recognises a social, moral or legal duty, once that is recognised by the Court, ex hypothesi, it will attract the public policy ground of itself. I think that is an exercise that happens regularly in qualified privilege cases.

KIEFEL J: Do you see, for the purposes of your argument, Bashford as a self-interest case?

MR TOBIN: No, your Honour. I think in some ways - - -

KIEFEL J: And, forgive me, I should also clarify for the transcript, I have misdescribed – I referred to Macintosh v Dun as not being approved in a later case. It was not Norton v Hoare, it was Howe and McColough v Lees, of course, which was - - -

MR TOBIN: I think my learned friends have referred to that, yes.

KIEFEL J: - - -dealt with in Bashford.

MR TOBIN: Yes, thank you, your Honour. Your Honour, could I say this of Bashford? That was, clearly, a case based upon the notion of duty which, in the joint judgment led by the Chief Justice, Justice Gleeson and in Justice Gummow’s judgment, all the pointers are to an acceptance of this as a commercial relationship in which there was a contractual or commercial duty to publish. And, it is unfortunate, in a sense, that so much energy has been taken in our case in dealing with the fact that it was a dissenting judgment by Justice McHugh which, as I said, was really aimed at a different conclusion. In other words, his Honour was attacking it as if it were an interest only case of the kind that your Honour has referred.

KIEFEL J: Yes, I see what you mean. But are there any cases which actually talk about an interest in being in some discrete category as self-interest, and in that regard, the cases that I think you refer to in this connection as giving some reasonable necessity test are really only cases where the interest of the defendant is in rebutting an attack upon them.

MR TOBIN: Yes.

KIEFEL J: That is how reasonable necessity has been discussed.

MR TOBIN: Yes, but your Honour raised it with me earlier and I do not think - - -

KIEFEL J: So they are different scenarios.

MR TOBIN: I am sorry, your Honour. I do not think I paid attention sufficiently to what your Honour put.

KIEFEL J: No, you probably promised to come back to it.

MR TOBIN: No, I am sorry. But in this particular case, your Honour, what Mr Holmes à Court was saying was that my interests are being attacked my Mr Papaconstuntinos, allegedly because this was - - -

KIEFEL J: I do not think the analogy is a very good one. I see where you are going. Mr Papaconstuntinos has not attacked Mr Holmes à Court – attacked his reputation – to put us then in the sphere of some of these cases that you refer to where the consideration is given to whether the rebuttal and the counterattack was disproportionate, as it may have been discussed in some cases.

MR TOBIN: Yes.

KIEFEL J: Whether that is a correct test, we will put to one side, but we are not in that territory.

MR TOBIN: I think, with respect, your Honour, Mr Holmes à Court’s evidence takes us fairly close to it because he said that the appellant was spreading stories to the effect that if he took over the club – Holmes à Court took over the club – and wanted to, as it were, shed himself of it at some stage, the club would go broke and they would take their money out of it. Now, that does not seem to us at a great remove from those earlier cases that your Honour referred to, but the earlier cases I accept, your Honour, are not going to be on all-fours with this issue and these interest cases are relatively rare in qualified privilege.

CRENNAN J: Just to go back to Justice Kiefel’s question, is there a case or a line of cases which do not involve the circumstance of a reply to an attack, do involve the circumstance of a volunteered defamatory statement in furtherance or in protection of self-interest where this idea of reasonable necessity has played a role?

MR TOBIN: I do not think I can point to a case that answers that description, your Honour. As your Honour would see from our written submissions, the approach that we take is to posit necessity with the understanding that his Honour the Chief Justice put to me, but to posit that notion of necessity, to look for an objective assessment of it, to take into account Toogood v Spyring and what is the exigency, the urgency, the pressing need to publish, and then to look at how that would be moderated, how the protection of the interests of plaintiffs would be protected from simply an exercise of saying, well, was it reasonable in all those circumstances.

Now, your Honours will know from our written submissions, and I am referring, your Honours, to paragraph 10, which we marry to the idea of pressing need or to reasonable occasion or exigency, and what we would submit to your Honours is that that issue which was called pressing need in that series of Court of Appeal decisions following Bashford which we have described as a reasonable necessity test in which a volunteered statement to defend interest will ordinarily require pressing need, in looking at that question, your Honour, we would submit that there would be a number of the circumstances which the Court would wish to have regard to and they are listed in paragraph 10.

Of course, your Honours, at the end of the day there is perhaps a simple question: is it for the common convenience of welfare of society that this defamatory material should be protected in circumstances where the objective for the defamatory publication is to secure a commercial prize and in which there is no element of duty, there is no dimension of duty, as said at the outset, and what are the limitations that the common law might impose upon too ready an acceptance that publications of that kind can be made with a certain impunity?

If I could take your Honours to 39 of our submission, which I think I need to qualify or correct. In 39, your Honours, we raise the question of the defence of personal interest and then discuss the question of malice as explained in Roberts v Bass and the insistence in Roberts v Bass in paragraph 76 that:

malice involves the defendant acting for an improper motive or purpose –

and in the course of paragraph 76, your Honours, I think I should qualify what I have put there. The judgment is that of Justices Gaudron, McHugh and Gummow. Their Honours discuss a finding of malice as requiring a conclusion that:

the defendant was actuated by an improper motive in making the publication.

Then their Honours deal with a clutch of evidentiary material that could point to the existence of malice in that strict sense, the improper motive, and their Honours say about a third of the way down that paragraph:

The evidence or the publication must also show some ground for concluding that the ill-will, lack of belief in the truth of the publication, recklessness, bias, prejudice or other motive existed on the privileged occasion and actuated the publication.

So the first way the belief in falsity is referred to is a lack of belief in the truth of the publication, then their Honours go on to say an actual knowledge or belief that the defamatory statement was false would ordinarily be sufficient to attract a finding of malice.

KIEFEL J: I am sorry, Mr Tobin, can you assist? The proposition in paragraph 39 for which Roberts v Bass was quoted was:

Malice does not provide a sufficient limitation -

MR TOBIN: Yes, your Honour.

KIEFEL J: Is that derived from paragraph 76?

MR TOBIN: Yes, your Honour.

KIEFEL J: I see.

MR TOBIN: In other words, if one leaves aside the actual belief that the statement is untrue - and I think I should qualify the seventh line of paragraph 39 which says:

protecting the trader’s business would not be malicious -

I think I should add, but for the stipulation in paragraph 76, because obviously their Honours have made it plain that – I make it plain that that is an erroneous statement without the qualification.

But having said that, what we submit is that the sort of example that one has in the trader or the commercial person pursuing a particular objective is that it would be very difficult to establish malice in defeasance of that when, as we say in this case, Mr Holmes à Court was pursuing a particular purpose, the outcome of the vote, and that he was writing the letter in pursuit of that purpose. Now, that does not introduce malice at all because malice is foreclosed to us, but it does say, to answer your Honour Justice Kiefel, that the difficulty at trial of establishing malice of the kind that their Honours referred to, that the publication was actually actuated by an improper purpose, is an enormously difficult one. We would submit - - -

FRENCH CJ: Part of the territory is covered by the legitimacy of the interest that is being protected, is it not?

MR TOBIN: That precedes it, your Honour, yes.

FRENCH CJ: Yes, that is right, but I mean in the sense that is a constraint.

MR TOBIN: Well, your Honour, that is why I urge, if I can say with respect, the concept of reasonable necessity. In other words, because of the high bar of establishing malice following Roberts v Bass and because of the natural tendency of persons pursuing their own personal interest, commercial or whatever, and the temptation to publish defamatory matter in order to secure that objective, because of those things, we would submit, with respect, that the common law should really have a special regard in interest only cases of the kind that we referred to earlier as pressing need and the better explanation of pressing need is that it is within a wider category of reasonable necessity.

FRENCH CJ: What is the difference between the proposition that you are putting and the proposition that it was a condition of the existence of qualified privilege that the publication was reasonable in all the circumstances to protect a legitimate interest? Otherwise you get some sort of strange chasm or fissure between those two.

MR TOBIN: Well, your Honour, the common law approach had not ever embraced the concept of reasonableness as the governing factor. Certainly the New South Wales statute in 1974 did that and the uniform Defamation Act does it. The concept of reasonableness is a statutory construct. It is not antithetical to the common law, but the common law is a stricter test, your Honour. The Defamation Act, for example, speaks of an interest or apparent interest in the subject matter. So the ordinary test that the court would not at common law allow an apparent test to determine the existence of the interest, appears in the Defamation Act but not at common law. So that would be my understanding, your Honour.

BELL J: May I inquire, you commenced by taking us to Justice Dixon’s statement in Guise of the necessity to make a close scrutiny of the circumstances of the case and the situation of the parties, and it is put against you at paragraph 29 of the respondent’s submissions that what you now seek to do against that principle which has been subsequently adopted by the court, is to impose a test that narrows and qualifies the meaning of the expression “in an interest case”, but one wonders what utility that serves. You have been at pains to drive a distinction between duty and interest in a way that, again coming back to Guise at page 125 of the judgment at (1947) 74 CLR, I rather take his Honour to be critical of:

The reduction of matters of privilege to formulas of duty and interest –

and his Honour goes on. I will not read the whole of the passage. But is it useful to take the law of qualified privilege down the path of a dichotomy between duty and interest cases and the addition of a test of reasonable necessity in a case that is classified as an interest case? Why are we not better off adhering to the notion that what is to be looked at is a close scrutiny of the circumstances, the relations of the parties and so forth, in which considerations of whether or not a person has come forward in the context to promote his or her own self-interest may be in the mixed – relevant to take into account, but why would we, at this stage in the development of the law add a particular fetter, a new test?

MR TOBIN: Your Honour, I think the answer is generally this. First, the Court would only eradicate the classic distinction between duty and interest if it were of the view, in my submission, that the underpinning of this defence in Toogood v Spyring had passed its useful date.

BELL J: You speak of eradicating the difference, but does not one find reference in the authorities to the overlap between duty and interest?

MR TOBIN: One does, your Honour, but I would submit - - -

BELL J: I am not speaking of eradicating anything, Mr Tobin. I am asking what we are erecting on your argument?

MR TOBIN: It would be a radical departure from the court’s approaches to both interest and duty to submerge, as it were, the sharp difference between them. If I could explain it this way, your Honour. In a duty case the underpinning of Toogood v Spyring, which, if I may say, with respect, we would, until the court is of a different mind, insist on as the underpinning, namely, the convenience and welfare of society, that is the public policy ground. If one submerges or blurs the distinction between duty and interest, the danger that one faces is this. Duty cases, as I think we have put, are of their nature, once the existence of the duty is found, going to attract the justification for the publication of defamatory matter against another person’s reputation and interest.

In the absence, your Honour, of that sharp distinction, when one gets to an interest case, the court is not, as it were, highlighting as part of its function – I am talking of trial courts – as part of its necessary function the need to ensure that that overriding public policy question will be answered in the positive. That is why I read from Lord Macnaghten. We would submit that to alter at this stage the distinction between duty and interest will have the impact in practical terms in trial courts of encouraging the trial judge to conform the views that attach to duty cases to interest cases, and our plea has been, I think perhaps insistently, that that would be a wrong turning, your Honour.

BELL J: When Baron Parke spoke of the discharge of some private duty in the conduct of a person’s own affairs, would another way of describing that be to speak of the person’s interests?

MR TOBIN: Can I just pick up the passage that your Honour was putting to me?

BELL J: Yes. It is conveniently set out at appeal book 356, paragraph 79 in Justice McColl’s judgment in the first of the italicised passages.

MR TOBIN: Yes.

BELL J: I am not quite sure that Baron Parke is driving the clear distinction that you make, Mr Tobin

MR TOBIN: Is that “public or private duty”? Is that the - - -

BELL J: I am directing attention to the notion of the “private duty” and the conduct of one’s own affairs in matters where the person’s interest is concerned, again, to quote Baron Parke.

MR TOBIN: Yes. Your Honour, in some of the early cases the word “right” attaches to that interest. Now, why that is perhaps not a good term is that it is loaded with contemporary jurisprudence, much of it American, in other words, it is difficult to – but they do use the term “right”. In other cases, and a good example of it is in one of our footnotes, Wenman v Ash. Justice Maule refers to the need to justify the communication. So the term “right” or “justify” are an attempt to say, I would suggest, your Honour, what is the basis upon which you can vindicate what you have done in pursuit of your own private interest?

These seem to be cases, your Honour, where the courts are, frankly, wary of an unrestrained pursuit of private interest and, as I have said earlier, with good commonsense appreciation of human nature. Now, I know, your Honour, that it would be, of course, open to the Court to redefine the boundaries between the two concepts – your Honour smiles – but could I ask rhetorically, but to what good? The fact is that that distinction has governed the Court’s approaches and the jurisprudence that has grown up around it is pretty powerful and one would need to, as it were, gain a real jurisprudential benefit from that clarification, your Honour. I think I am on the side of the traditionalists on that issue, your Honour.

KIEFEL J: Just returning to what Baron Parke said in Toogood v Spyring, it is convenient I think to take it up in Guise v Kouvelis [1947] HCA 13; 74 CLR 102 at page 125 which was being discussed earlier in the judgement of Justice Dixon. If one is to read what Baron Parke said literally and apply it, it might be said – Justice Dixon, speaking of Baron Parke, pointed out that Baron Parke had said that:

Toogood v Spyring speaks of communications ‘fairly made by a person . . . in the conduct of his own affairs, in matters where his interest is concerned’ and –

as Justice Dixon then said –

demands no community, reciprocity or correspondencey either of interest or duty –

and cited Mowlds v Fergusson in support of that. His Honour, albeit in dissent, was clearly raising the question whether or not the requirement of reciprocity was truly to be seen in what Baron Parke had ever said. I do not know whether that is really an issue on this appeal.

MR TOBIN: Well, your Honour, I think the question of interest we have raised in ground 5 and we have approached it on the basis that the law requires that reciprocity. That passage –

KIEFEL J: Reliance is always placed on Toogood v Spyring for what it literally says and this is the problem. You take it literally. Justice Dixon thought it was quite clear, there is no reciprocity.

MR TOBIN: Well, your Honour, I have relied upon that famous passage, which seems to be quoted in the Court on numerous occasions, including in very recent times, and simply ask that if one unpacks the language, the bedrock of it is the question of a service of the public interest, if I can use a more modern term, and that your Honours, I would submit with respect,

would approach the conduct of the defendant, in this case the respondent, on that basis, that that can never be excluded from a characterisation of that which properly describes the conduct of the publisher.

BELL J: Well, it is one of the circumstances one takes account of in the close scrutiny, is it not, if you accept the formulation that Justice Dixon posed in Guise?

MR TOBIN: I would, with, I can only say, enormous respect, as being born in Melbourne, for Sir Owen, but, no, your Honour, I would not accept that and I do not know that Sir Owen would be going down that path necessarily. As your Honours please.

FRENCH CJ: Thank you, Mr Tobin. Yes, Mr McClintock.

MR McCLINTOCK: Your Honours have my written outline and in an attempt to shorten things, I have attempted to reduce it even further in the matters that I wish to put to your Honours. Your Honours, there are two propositions that I wish to urge upon your Honours, and a couple of loose ends arising from what my learned friend has said in address this morning that I wish to deal with. The first proposition, and this will come as no surprise to your Honours, is that there is not, and there never has been, any requirement on the part of a defendant to establish pressing need or reasonable necessity before he can succeed on interest only qualified privilege defence. And, in fact, no case properly understood supports that proposition. The only cases relied upon by my learned friend are reply to attack cases which are, in some cases, of very doubtful authority. I say that with great respect to the decision of this Court in Norton v Hoare, but putting that aside, they are plainly reply to attack cases. I will come to deal with them.

I need to say something about Coxhead v Richards which my learned friend makes much of in his submissions. The – well, I cannot call it minority because there was a deadlock there between Chief Justice Tindal on the one hand and Justice Erle on the other - I am not quite going to it yet – and Justices Coltman and Cresswell on the other. And the only support in the authorities, for my learned friend’s proposition, is what Justice Coltman said, but that has never been followed in Anglo-Australian jurisprudence, and has indeed been specifically disapproved. For what it is worth, it was, in fact, specifically disapproved in New Zealand in 1865 by the New Zealand Supreme Court in a case that I will give your Honours a reference to – I will not take your Honours to it. That is the first proposition; no requirement for pressing need.

The second proposition is to, as it were, unpick the test posited by Mr Baron Parke in Toogood v Spyring. To show what his Honour actually meant by the words he used and, ultimately, the proposition I wish to put to your Honours in relation to that, supported by Justice Higgins in Howe and McColough v Lees, and by Justice Dixon in the passages to which your Honours have just been taken in Guise v Kouvelis, is to say that interest in this situation means nothing more than a socially valid reason for making the publication in question. It is there to protect steps taken by persons in advancement of their interests, provided, of course, that they have an interest in the issue in question.

The loose ends are these. First, I think this may well have been resolved in the course of the debate this morning between your Honours and my learned friend, but the issue of Mr Ferguson’s interest was decided in favour of my client by her Honour, the learned trial judge, decisively, and there was no challenge to that in the Court of Appeal whatever. The Court of Appeal, not surprisingly, given the three earlier decisions of the Court of Appeal that had picked up on Justice McHugh’s dissent in Bashford, the bulk of the debate on both sides in the Court of Appeal involved the pressing need issue on the part of the publisher and whether the Court of Appeal had been right in following Justice McHugh, as opposed to the two majority judgments – if I can call them that – the judgments of the Chief Justice, Justice Gleeson, your Honour Justice Heydon and Justice Hayne on the one hand, and Justice Gummow on the other. That is what the debate was about. There was never a submission put by my learned friend to the Court of Appeal that Mr Ferguson did not have an interest, and it is not part of the appeal here, in any event.

CRENNAN J: Well, there is ground 5, I suppose.

MR McCLINTOCK: Perhaps inferentially and certainly not made very clear, one has to say, with respect, your Honours. I do not see it really in the written submissions, but in any event, her Honour the learned trial judge was right on this point; plainly, in relation to the second two imputations which involve suspicion of corruption on the part of a union official, Mr Ferguson did have an interest.

It will be borne in mind that the information was that the plaintiff’s son – the appellant’s son was being paid $60,000 to coach a lower level Rabbitohs team, that that was something like 10 times the amount paid to any other coach, that the funds were being provided by construction companies, that is, companies in the industry as to which the CFMEU, Mr Ferguson’s union, covered the employees. As her Honour said correctly, it has to be suspicious. Questions might well be raised as to why construction companies were paying the salary of the son of a union official.

CRENNAN J: Was there a ground of appeal before the Court of Appeal dealing with this issue?

MR McCLINTOCK: The issue was decided in my favour so we would not appeal.

CRENNAN J: No, that is right. Was there any notice of contention is really what I was asking about.

MR McCLINTOCK: There was no notice of contention, your Honour. I am told there was a notice of contention – I stand to be corrected. I do not believe it raised this issue but I will have that checked, your Honours.

FRENCH CJ: There is a reciprocity of interest question, I think, page 318.

MR McCLINTOCK: I think your Honour the Chief Justice is correct, but there was no challenge to Mr Ferguson, I believe. Yes, your Honour is correct, your Honour the Chief Justice is correct, but there was no specific challenge to the issue of whether Mr Ferguson had an interest. May I say in relation to that too that on the findings of her Honour the learned trial judge, and this is to close off, so to speak, another loose end, there were two other recipients, but they never received separate treatment and the case always stood or fell on the part of the interest that Mr Ferguson himself had.

One was the secretary of the Rabbitohs, Mr Pappas, and the other was another union official, Mr Parker. So we will focus, as has always occurred in this case, upon Mr Ferguson, the actual recipient of the letter. The third loose end, your Honour, is this – and again, this probably has been resolved. We had the benefit of decisive findings of lack of malice on the part of my client from her Honour. They are set out in our written submissions. I will not take you to the passages in question, but her Honour found that my client’s purposes were proper. She found that he was honest and frank in his evidence on these points, and that is significant when one comes to deal with his interest. Perhaps I should give your Honours - - -

KIEFEL J: Did her Honour actually conclude the question of malice? She left open a question about whether there was a motive extraneous to the occasion.

MR McCLINTOCK: Your Honour, the passages appear in paragraphs 76 and 77 of her Honour’s judgment which appear at 291 to 292 of the appeal book. Your Honours will see there that in 76 and 77 after positing the question, did Mr Holmes à Court honestly believe what he published, she said in 77 – she is dealing with an attack on his credibility which she resolves in his favour there; that is paragraph 77. In other words, she is saying that the explanation he gave for why he sent the letter was the correct explanation as he saw it.

KIEFEL J: I was thinking of what her Honour said at paragraph 101?

MR McCLINTOCK: Certainly, your Honour. Her Honour is dealing there with – that has to be seen, your Honour, in the context of what is preceded it in paragraph 100 where her Honour is saying that Mr Holmes à Court was not publishing for the purpose of discrediting Mr Papaconstuntinos. Paragraph 101 is perhaps a more technical defamation lawyer’s question, which is this. If one posits a particular kind of qualified privilege, is the motive, even though it is an honest motive here, is it somehow extraneous to that occasion? For example, in a reply to attack case to use that as an analogy, if one’s motive ceases to be to reply to the attack, for example, but becomes to smear the original attacker, that could be said to be a motive extraneous to the occasion. We do not read that as derogating from her Honour’s finding in relation to the specific occasion that there was no malice.

KIEFEL J: In any event, there is no issue before this Court in relation to malice.

MR McCLINTOCK: There is not. Your Honour, my fourth loose end is Macintosh v Dun. Your Honours, that case, which is now over a century old, has been but tottering authority since at least 1916 and probably earlier. First, it was ridiculed in an article in the Harvard Law Journal within months of its decision. Second, it was reversed by - - -

KIEFEL J: Do you have the reference to the article?

MR McCLINTOCK: I do not, your Honour. I will have to supply it later. I apologise.

KIEFEL J: If you could give us a note. Thank you.

MR McCLINTOCK: I had not intended to say this about this, your Honour. It was reversed by statute in New South Wales in the Defamation Act 1912, something that does not seem to have been mentioned in Bashford, but it was. There is a specific provision saying, in effect, that it does not – and I will send a note, your Honours, of these references, I apologise. There is a specific provision saying it does not matter if you publish for reward. The third, in England, in the House of Lords, it was distinguished out of existence in the Greenland’s Case [1916] 2 AC 15, which I think is on one of the lists of authorities.

That is made apparent by Watt v Longsdon [1931] 2 KB 130, and which I will later come to. It cannot stand. It was distinguished out of existence in Australia in Howe and McColough v Lees, the case that your Honour Justice Kiefel mentioned, and it is impossible to see realistically how those two cases can stand together. Bashford is inimical, when one thinks about it, to Macintosh v Dun and, finally, your Honours, in relation to that case, when one actually reads the decision of the Full Court of the New South Wales Supreme Court and the decision of this Court in Macintosh v Dun, there can be no doubt that this Court and the Full Court had by far the better side of the debate. Lord MacNaghten’s speech, or advice to her Majesty, is redolent of upper-class English disapproval of trade - - -

HEYDON J: He was an Irishman.

MR McCLINTOCK: Indeed, your Honour, he was.

HEYDON J: I do not think you should speak about Lord MacNaghten like this, quite frankly, Mr McClintock.

MR McCLINTOCK: I am sorry, your Honour. But, in any event, in my submission, the decision is wrong and should not be followed. Your Honour, I accept that Lord MacNaghten was one of the greatest common law judges ever, but this is a case of.....in my submission. Your Honour, those are the loose ends. Your Honours, those are the loose ends before I come to the propositions that I wish to put to your Honours.

KIEFEL J: While you are pausing, could I ask you this? It was said in the Court of Appeal that the defendant relied upon common law defence and eschewed the statutory defence of qualified privilege.

MR McCLINTOCK: Yes, your Honour, that is correct. That is section 30, in my recollection, of the Defamation Act.

KIEFEL J: Yes, that is right. Section 6(2) of the Defamation Act 2005 says:

This Act does not affect the operation of the general law in relation to the tort of defamation except to the extent that this Act provides otherwise (whether expressly or by necessary implication).

Is there authority which says that the provision of section 30 does not oust the common law?

MR McCLINTOCK: I cannot recall off the top of my head a specific - - -

KIEFEL J: This is obviously the accepted position?

MR McCLINTOCK: It is the accepted position and there was a similar provision in the 1974 New South Wales legislation and it was accepted there that the - - -

KIEFEL J: That is where it has come from then. The authorities will deal with the 1974 Act.

MR McCLINTOCK: Yes. It was accepted there that - - -

KIEFEL J: Yes, that is right.

MR McCLINTOCK: - - - common law qualified privilege could always be relied upon in addition to the section 30 reasonableness defence. Of course, the benefit obviously, and this may be relevant in this case, is that the common law qualified privilege defence, because of the malice matter of defeasance, protects honest but not necessarily reasonable publications. That, of course, being the point of difference relevantly between the two defences. Your Honours, my first proposition - - -

FRENCH CJ: Incidentally, would you draw a distinction between reasonableness and reasonable necessity?

MR McCLINTOCK: Your Honour, there is a distinction, we think, between those two concepts. There is no question that when one comes to look at the criteria by which the defence is established, that there are some notions of the reasonable interest of society and so on floating around there, but if necessity means necessity, we, in our submission, suggest that that is not and never has been part of the test. That involves some consideration, your Honours, of what Mr Baron Parke meant in Toogood v Spyring. Now, there are two key passages and two key words. It is conveniently set out in the judgment of the Court of Appeal which appears in the passage to which your Honours have already been taken at - - -

BELL J: It is 356 of the appeal book, paragraph 79.

MR McCLINTOCK: Yes, indeed, your Honour. Can I just point out a couple of things about that passage or that quote. Before I do, could I say this. As was pointed out by Justice Gummow in Bashford, there is a connection between this passage and what Mr Starkie, who had published the second edition of his text on the Law of Slander and Libel three or four years before Toogood v Spyring, said. It has since become clear, since Bashford, that the reason why there was a connection is that Mr Baron Parke was aware of the passage in Starkie, as one would expect, and had in fact copied it out in longhand into his commonplace book quoting the particular passage that ultimately became the words in Toogood v Spyring.

That comes from a book called The Making of the Modern Law of Defamation where Professor Mitchell went back to the Cambridge Law Library and found Justice Parke’s commonplace book with that passage copied out, attributed to Mr Starkie, but not attributed to Mr Starkie in the judgment in - - -

CRENNAN J: There is a certain element of so what, is there not?

MR McCLINTOCK: Well, except that there is one key thing that elucidates what Mr Baron Parke meant by the word “exigency” in what appears in the passage he copied out in Starkie, but the two points I wish to make are these. If one looks at the passage that was raised with my learned friend, it suggests that the qualified privilege arises when the publication is made in the conduct of his own affairs in matters where his interest is concerned. That, I suggest, is a very low test and it really is another way of saying, did the defendant have a good reason for making the publication, and that that is all that “interest” there means. It then becomes necessary - - -

FRENCH CJ: What does the notion of “fairly made” import?

MR McCLINTOCK: It does not connote some element of fairness to the other side in the communication. It could not because of the defamatory notion. It just means, I suppose perhaps, reasonably related to his interests and one has to say, of course, in a passage that I will come to later, Justice Higgins in Howe & McColough v Lees very carefully makes, in effect, the same point as to what the criteria are in relation to this.

KIEFEL J: “Fairly made” has been understood in some cases as a test of relevance, has it not, relevant to the interest?

MR McCLINTOCK: Relevant to the interest, yes. That is my submission, in fact, your Honour. If it was wholly irrelevant to the interest in question, it could not be fairly made.

FRENCH CJ: The word appears again later in the page “fairly warranted by any reasonable”, et cetera.

MR McCLINTOCK: Yes, and it is that passage that I was about to come to, your Honour.

FRENCH CJ: Yes.

MR McCLINTOCK: Because there are two things I want to say there about the meaning of the word “occasion” and the meaning of the word “exigency”. The word “occasion” there, and when one looks at it, it is very hard to see it had any other meaning, means cause, any reasonable cause. It is a slightly archaic use, not archaic in the time of Mr Baron Parke, but a slightly archaic use of the word “occasion” or the noun “occasion” in circumstances where we still use the verb “occasioned by” to mean the same concept of cause.

That is also made clear, and I will give your Honour the reference to the passage in Professor Mitchell’s book, at page 149 there where he sets out the meanings of the word “occasion” from Dr Johnson’s Dictionary and ultimately comes down on the side of cause. The word “exigency” again simply means, in my submission, need. It does not connote any quality of imperative necessity.

CRENNAN J: Well, certainly if you look up the Oxford it is “pressing necessity” and has been for a very long time.

MR McCLINTOCK: Yes, but when one comes then, if I might, your Honours, to what Mr Starkie said about it – and I apologise for taxing your Honours with academic text – but your Honours will see on page 153 of the passage which we have given to your Honours, your Honours will see there that in the middle of the - - -

FRENCH CJ: What are you referring to at the moment?

MR McCLINTOCK: We provided to your Honours earlier today two additional authorities, the extracts from The Making of the Modern Law of Defamation, to which I have been referring, and a copy of Starkie on Libel and Slander.

FRENCH CJ: Yes.

MR McCLINTOCK: If your Honours go to page 10 of that bundle, which is page 153 of Professor Mitchell’s text, your Honours will see there that Mr Starkie – it says this:

Starkie prefaced his analysis with the following general statement of principle:

The extensive principle which governs this class of cases, where the existence of express malice is a test of civil responsibility, comprehends all where the author of the alleged mischief acted in the discharge of any public or private duty, whether legal or moral, which the ordinary exigencies of society, or his own private interest, or even that of another called upon him to perform.

Parke B copied out this exact passage into his commonplace book –

Your Honour, it is ordinary exigencies of society, it is not the Oxford Dictionary; it is simply what are the ordinary needs of society. The ordinary needs of society, in our submission, include the ability to convey information about matters where the person’s interest is concerned without fear of being sued for defamation. That is the ordinary need of society, and we rely upon that as the true meaning of the word “exigency” as used by Mr Baron Parke in Toogood v Spyring. The word “occasion” over the years also has taken on another life because people talk about an “occasion of qualified privilege”, and that probably derives from a slight misunderstanding, well, it doesn’t matter, of what Baron Parke was saying in that passage. As I say, we say it means cause.

Your Honour, I come then to Coxhead v Richards for the sole purpose of – I will not read it, your Honours; it was dealt with extensively in the Court of Appeal. The judgments of Chief Justice Tindal and Justice Erle support the proposition that we have been putting that there is no pressing need or necessity. Your Honours will recall the facts of the case were that the mate of a ship writes to the defendant and says the skipper of the ship was drunk, repeatedly drunk, on the journey from France to Wales. The defendant, who had nothing to do with the matter except being a friend of the mate, is concerned, he makes some inquiries, talks to people in the shipping business, and then he writes to the owner of the ship.

Now, it could not even be said, at least before he got the information, that he had any interest or duty at all. Justice Coltman put it on the basis that because the ship was not due to sail for another month there was no pressing need – he did not use those words, he used “urgency” or “gravity” - but that was rejected by Chief Justice Tindal and Justice Erle whose judgment became the judgment of the Court because they were affirming a decision below; in effect, it was a rule nisi.

It is only Justice Coltman in any other case except in the area of reply to attack who has ever suggested that that is an element. He was in the minority in that case. Justice Cresswell who in effect would have decided the case in the same way did not say the same things. Justice Coltman’s view was decisively rejected no later than 1930 in England, and the case is Watt v Longsdon which I believe your Honours have been given a copy of and I should take your Honours briefly to the particular passages.

It is reported in [1930] 1 KB 130, and the particular passages appear at pages 144 and 151 in the judgments of respectively Lord Justice Scrutton and Lord Justice Greer. Lord Justice Greer is probably the easiest passage to take your Honours to. I will not read it, but it stands for the proposition that throughout the 19th century and into the 20th century the views of Chief Justice Tindal and Justice Erle applied and were correct and that there was no need to prove pressing necessity.

Your Honours, that leaves only the reply to attack cases which are unique in many ways, but, as I recall the position, it is only Norton v Hoare in this Court that has ever stood for that proposition, which is not mentioned in Loveday v Sun Newspapers nor in Penton v Calwell, the two following cases which are both classic expositions of reply to attack qualified privilege.

KIEFEL J: I think it might be somewhat inconsistent with what was said in Adam v Ward.

MR McCLINTOCK: Certainly, with what was said by Lord Atkinson in Adam v Ward, in my submission. The other thing about Norton v Hoare, your Honour, is that it is a pleadings case. Now, I know it was this Court and I know it was Sir Isaac Isaacs, but it was about whether a defence could be maintained on the pleadings and, in any event, when one comes to reply to attack cases, there are distinct issues because the first question in a reply to attack case is, was this a reply to that attack, because that is the only thing, of course, that the privilege protects and if it is not necessary to respond to the attack, taking a very broad view of what “necessary” is there, it ceases to be a reply and, therefore, is not covered by the occasion. There are various ways and various steps in the analysis that that can be considered as, was it an occasion at all, was the material relevant to the occasion and was it evidence of malice, but that is the point in those cases.

Reply to attack cases really are a unique species of qualified privilege because the privilege is created by something the plaintiff actually does that creates, in fact, the privilege, which is unlike the interest cases, here because the interest in cases like – the interest or the duty – case like Coxhead v Richards comes from the possession of the information or the need to advance one’s own particular social interest. But, in any event, in my submission, your Honours, this is perhaps a longwinded way of saying that there is no support in the authorities for pressing need in this category, the category before your Honours, of qualified privilege.

KIEFEL J: The other factor about Norton v Hoare is that the principal question there was whether the defence extended to the protection of property.

MR McCLINTOCK: Yes.

KIEFEL J: These are quite subsidiary issues. They were not really the focus of the judgments.

MR McCLINTOCK: Thank you, your Honour. That was another point I meant to make about that case. It was the newspaper that was attacked and Sir Isaac Isaacs’ focus was very substantially on whether a verbal attack on someone’s property created the right to reply and, as your Honour says, there was little focus on reasonable necessity in other areas. There is also a large flavour of injurious falsehood floating around in the case as well where there is repeated references to cases that are, in fact, injurious falsehood cases, where his Honour is talking about attacks on property. But, in any event, in my submission your Honour, it is substantially irrelevant to the issues before your Honour and your Honours need not consider it.

Your Honour, could I also give your Honours a reference to Odgers on Libel and Slander. We provided a copy again earlier to your Honours. It is the third edition. The significance of that is that it is before Macintosh v Dun and there, at page 238, your Honours will see that the learned author comes to deal with information volunteered when there is no confidential relationship existing between the parties. I commend it to your Honours as stating the law accurately now as well as in 1896, but at the top of page 239 Mr Odgers says, in relation to Coxhead v Richards:

I venture to think that the judgments of Tindale, C.J., and Erle, J., would be followed in the present day rather than those of Coltman and Cresswell, JJ., and that such a caution would be held privileged.

There is further passage over the page which makes it clear that - - -

FRENCH CJ: It was to Bennett v Deacon, was it?

MR McCLINTOCK: Yes, your Honour. It is on page 240, your Honour, after the - - -

FRENCH CJ: The reference you just gave us on 239.

MR McCLINTOCK: Yes. That comes from Bennett v Deacon. Bennett v Deacon was a sequel to Toogood v Spyring which comprised the same bench – sorry, Coxhead v Richards, I apologise. It was a sequel to Coxhead v Richards. It comprised the same members of the court. They divided equally again on the same issue and the comment, I venture to think, is that of Mr Odgers himself responding to what had happened in Bennett v Deacon. Over the page is a passage, on page 240, which makes very clear that it is permissible to volunteer statements provided you have got an interest in the matter. That is the passage that says:

But in most other cases the defendant runs a great risk in volunteering statements which afterwards turn out to be inaccurate, unless indeed he is himself personally interested in the matter –

Your Honours, the next area is to just to further tease out – and this is my second proposition – the meaning of what is required in this type of qualified privilege. I have taken your Honours to Toogood. I do not need to say anything more about that. But could I take your Honours to Justice Higgins in Howe and McColough v Lees reminding your Honours that this passage was quoted by Justice Gummow in Bashford. It is in the decision of Justice Higgins and it has always been thought to state the law in this area. The case is reported at [1910] HCA 67; 11 CLR 361. The particular passage appears at 398 and dealing again with the word “interest”. In the middle of the page his Honour said this:

The truth seems to be that the word “interest,” as used in the cases, is not used in any technical sense. It is used in the broadest popular sense, as when we say that a man is “interested” in knowing a fact – not interested in it as a matter of gossip or curiosity, but as a matter of substance apart from its mere quality as news. The interest of the other persons in Bendigo, or in Victoria, would probably be treated as too remote, too unsubstantial; but the interest of the limited body of auctioneers selling in the Bendigo yards, and exposed to the plaintiff’s bids, cannot be regarded as unsubstantial or remote.

Now, that is talking there about the interest of the recipient, but, of course, I would suggest that the same factors apply to the interests of the publisher in question. Your Honours, there are other passages in Howe and McColough v Lees which I will not read to your Honour, but they are in the judgments of the other members of the Court there. The references I will give your Honour are also Justice Higgins at page 396 – I should read that:

It is urged, however, that no dealing was imminent or in contemplation between Lees and any of the other auctioneers. I cannot see why this fact should prevent the communication from being “fairly warranted by a reasonable occasion or exigency.” The occasion may be reasonable, even if a dealing is not actually proposed.

We would see that as inimical to pressing need. Likewise, there are similar passages at page 369 in the judgment of the Chief Justice Sir Samuel Griffith and where, in effect, he says the same thing as Justice Higgins said there.

FRENCH CJ: There is some sort of concept of reasonableness there which is informing it.

MR McCLINTOCK: Yes, your Honour. There is no question that reasonableness is floating around. It has to be some form of reasonable interest, some form of interest that is in the interests of society to have. The interest – I was going to come to this a little later, but the interest here is as the Court of Appeal said - and the interests of my client - is very analogous to someone standing in an election. An occasion where provided the publication is limited, has never been doubted would be an occasion of common law qualified privilege.

There is recent authority in the Court of Appeal for that, your Honours, which is Fraser v Holmes, a case which I lost, (2009) NSWCA 36 where what had occurred was an election candidate had published – a candidate for election for the Liberal Party in a country seat had got a list of all the nurses in the electorate from the electoral roll and had sent a letter to each of those women – most of them were women, in fact – defaming the secretary of the nurses’ union, Mr Holmes. It was found to be - because of the election and because of the targeting, found to be an occasion of qualified privilege.

Here, it is an election. There was a vote going to happen on 16 March 2006 which had been the matter of very considerable controversy and passionate debate amongst people who have an interest in – specifically in relation to the Rabbitohs, the South Sydney Rugby League team. It is tribal Sydney, your Honours. They had hired the stadium at Olympic Park to accommodate the voters who were coming along to deal with this. Second, the interest – my client also had obviously a commercial interest in winning that vote. He and Mr Crowe were, of course, trying to take over the Rabbitohs. That was the whole point of the campaign that was being run.

Those are the interests and may I say they are well expressed by Justice Allsop and Justice McColl in the case. When one sees the evidence – this is taking it out of order – of Mr Holmes à Court on this point - there are two points - could I take your Honours to page – the passage begins in cross-examination at page 239, but where Mr Weaver put to Mr Holmes à Court - and this is the inextricable link in Mr Holmes à Court’s mind between what was going on. He had the information about the possible misuse of – about the moneys being paid to the plaintiff’s son, for some months beforehand, no question, but when he hears about what he is doing is when the penny drops and the connection is made in his mind between the two things. That is what the effect of this evidence is. If you look at it:

17. It is the case, isn’t it, Mr Holmes à Court –
    

this is between line 20 and 30:

that it was never a reason for you sending a letter to Mr Ferguson that you had any belief that Mr Papa had personally benefited from funds meant for the football club?

A. On – on the contrary. It’s – that is why we thought he was going to the extraordinary lengths that he was going to, to prevent two people –

that is obviously Mr Holmes à Court and Mr Crowe -

putting money into the football club. We couldn’t understand how – what was going on and why he was working so hard to prevent money going in. We thought it must have been, as I believe I have said before, to prevent us getting control, for getting us – to prevent us getting to have a deeper look inside the – inside the organisation and the way it had run and the way money had moved around the club.

Q. Your sole purpose in sending the matter complained of was to damage Mr Papa personally to assist your yes campaign, wasn’t it?

A. No. It was to stop him making telephone calls. It couldn’t have done any damage on a Friday to Mr Papa that would have helped our campaign. We were only trying to stop the misinformation being spread.

Q. And that purpose had nothing to do with any belief on your part that he had personally benefited from funds meant for the football club?

A. Sorry if I wasn’t clear before when I answered that question but we believed that the reason that he was making these telephone calls was because he had personally benefited from football club funds or sponsor funds and he did not want us to get in control of the football club and either change the way it operates or investigate what had happened in the past.

Then there are passages to the same effect that continue over until line 50 on page 240. To the same effect, although perhaps not quite as effectively, as my examination in-chief of Mr Holmes à Court, and the references are at 153, line 30 to 156, line 45 – I am referring, of course, to this Court’s side numbering, your Honours – where, in effect, Mr Holmes à Court said the same thing.

Now, he did have an interest, your Honours, it is the interest isolated in those passages and set out, if I may so, accurately by the learned President in the court below in the passages to which your Honours have been taken. Could I also give your Honours a reference here to show that Mr Holmes à Court’s desire to have Mr Ferguson intervene was by no means idle. Mr Ferguson did raise with Mr Papaconstuntinos the issue of Mr Holmes à Court’s letter on the day that he received it, and the reference there, your Honours, is to page 120 of the appeal book at line 35. Below line 30 he says:

Q. Do you recall then contacting someone else within the union to make enquiries arising from that letter?

A. I contacted Brian Parker, our Assistant Secretary, who supervised the work of Tony Papa and who had some knowledge of activities in the Rabbitohs football club.

Q. When you say you contacted him, was he in your Lidcombe office or was it by telephone?

A. I did it by telephone.

Q. Do you recall having a conversation with Mr Papa on that day, 17 March 2006?

A. Yes I do. I raised the issue, to the best of my knowledge, by telephone with Tony.

Then he goes on to say he was concerned about the allegation. Lower down on the page he indicates he had a subsequent meeting and at the top of page 1211 he was asked by my learned friend, Mr Weaver:

Q. Why did you do that?

A. I wanted to assure myself of the responses he had given to me over the telephone and to emphasise to him the importance of ensuring that he did not involve the union in the campaign against privatisation.

I do not think I need read any further in those passages. Your Honours, I should also adopt the passages from Sir Owen Dixon in Guise v Kouvelis to which your Honours have already been taken in relation to elucidating the meaning of “interest” in this case. Looking at it in summary point of view from the point of view of the facts, Mr Ferguson had an interest, so found by her Honour, not challenged in the Court of Appeal, not really the subject of challenge here. Mr Holmes à Court had an interest in the terms that I have been referring to, a socially valid reason for doing it, to win his campaign, a means to an end being to stop the campaign of misinformation which he believed Mr Ferguson was in a position to do. I rely upon the

reasons given in that respect by the learned President Justice Allsop and by Justice McColl in the court below.

In my submission, your Honours, once one puts aside pressing need, and again I hope I have demonstrated to your Honours that that really has no part in the law. I rely also, of course, upon what the Court of Appeal said, what Justice McColl said, which I suggest is compelling. Once that is put aside it becomes, in my submission, an absolutely plain case for Mr Holmes à Court having the interest that we relied upon and was found by their Honours below. Those are my submissions.

FRENCH CJ: Thank you, Mr McClintock. Yes, Mr Tobin.

MR TOBIN: Your Honours, may I refer the Court to our written submissions in reply. This was a matter not directly raised by my learned friend, paragraphs 5, 6 and 7 of those written submissions. This deals with a question that my learned friend has raised in his written material. Simply it is as follows, that upon the receipt of the letter of 17 March, that being the matter complained of at 258, 259 of the appeal book, Mr Ferguson wrote in reply a letter at 260 and 261 of the appeal book. It is dated 17 March 2006. However, as your Honours will see from page 261 at line 23, Mr Ferguson notes there that in the matter complained of Mr Holmes à Court had, in the language of that letter, respectfully requested that “I hear from you today”. That is an invitation he made to Mr Ferguson. And Mr Ferguson said:

I left numerous phone messages for you on Friday and left my phone on all weekend. I am available to meet you to discuss these issues further.

We put before the Court of Appeal, and we have put in our written submissions, that although Mr Holmes à Court invited contact to be made by Mr Ferguson that day, and for the purpose at 259, line 28:

I am seeking your assistance in checking the facts that I have presented, which are based on our very extensive due diligence . . . and telephone records of voting members (which I can supply at the appropriate time).

Notwithstanding the invitation and the request for assistance, no contact was made, although attempted by Mr Ferguson, over that weekend prior to the vote and, as I said at the outset, nothing came of that “investigation” following the successful outcome of the vote. Your Honours, that was used by us below and we would rely on it here to underline the fact that there was no pressing necessity other than to have an intervention for the purpose of the.....in the defamatory imputations being published against the appellant. They are our submissions, if your Honours please.

FRENCH CJ: Thank you, Mr Tobin. The Court will reserve its decision. The Court will adjourn until 9.30 tomorrow morning in Canberra and 9.30 tomorrow morning in Sydney.

AT 12.21 PM THE MATTER WAS ADJOURNED