The defence of qualified privilege protects the publication of
defamatory statements published pursuant to a legal, moral or
social duty, and in the absence of improper motive. The person
making the defamatory communication and the recipient of it must
have a common interest, or an interest in the subject matter to
which the communication is relevant.
In Holmes à Court v Papaconstuntinos 
NSWCA 59, the NSW Court of Appeal considered whether a defence of
qualified privilege is available when a defamatory publication is
made voluntarily rather than responsively, and is not motivated by
a "pressing need".
Justice McHugh and Bashford
In a dissenting judgment in Bashford v Information Australia
(Newsletters) Pty Ltd  HCA 5 Justice McHugh J said of
the defence of qualified privilege:
"ordinarily the occasion for making a volunteered
statement will be privileged only where there is a pressing need to
protect the interests of the defendant or a third party or where
the defendant has a duty to make the statement to the
His Honour also thought that if there is no pressing need for
the publication of defamatory material, for example, where there is
no immediate danger of harm to person or property, "the fact
that the defendant has volunteered defamatory matter is likely to
be decisive against a finding of qualified privilege."
In Holmes à Court, the appellant wrote a letter to the
respondent's employer containing what the trial judge, Justice
McCallum, found to be defamatory imputations about the respondent.
Justice McCallum also held that the defamatory statement was
volunteered and without any "pressing need" for it to be
Her Honour observed that McHugh J's dissenting judgment in
Bashford had been cited with approval by the Court of Appeal in
recent times and, endorsing McHugh J's judgment, ruled that the
appellant's letter did not attract the qualified privilege
Court of Appeal
On appeal, Justice McColl acknowledged McHugh J's reputation
as an expert in defamation law and accepted that dissenting
judgments can occasionally "take on a life of their own",
particularly when the author of the dissenting opinion is a
renowned expert in the relevant area of law.
However, the Court of Appeal ultimately observed that the
majority in Bashford did not endorse McHugh J's views and that
they did not reflect Australian law on the issue.
The Court of Appeal clarified that "pressing need" is
not an additional precondition to qualified privilege where the
publisher has an interest, even if the publication is voluntary.
Rather, a pressing need might indicate an underlying social
obligation to publish in the absence of a duty or interest.
Justice Allsop stated:
"... whether a social duty arises in the circumstances
where no pre-existing duty or interest exists will be analysed by
reference to all the circumstances. To such an analysis the
voluntariness of the statement may be relevant, as it may be in the
assessment as to whether the statement was fairly warranted by the
The decision in Holmes à Court makes it clear that
"pressing need" is not required for a defence of
qualified privilege to succeed when a defamatory statement is made
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guide to the subject matter. Specialist advice should be sought
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