It is accepted law that for a defamatory statement to attract
the common law defence of qualified privilege, both the maker and
the recipient of the defamatory statement must have an interest in
what is conveyed – commonly referred to as reciprocity of
interest or "community of interest" – or a duty
must exist on the part of the maker of the statement.
However, until now it was unclear whether qualified privilege
could be invoked in circumstances where a defamatory statement was
made voluntarily to protect or further personal interests, rather
than in answer to a request.
The High Court's decision in Papaconstuntinos v Holmes a
Court  HCA 53 (5 December 2012) has settled this question.
The majority held that, in cases where a defendant has volunteered
a defamatory statement in order to protect purely personal
interests, there is no additional requirement that there be a
"pressing need" on the part of the defendant to protect
those interests for the statement to be protected by the common law
defence of qualified privilege.
The dispute over the rescue plan for the Rabbitohs
In 2005, when South Sydney District Rugby League Football Club
was experiencing financial problems, Mr Peter Holmes à Court
and Mr Russell Crowe put forward a proposal to provide financial
assistance to the Club, in exchange for a controlling interest in
its management. The proposal had to be approved by the Club's
members at an Extraordinary General Meeting ("EGM").
At the time, Mr TonyPapaconstuntinos was the director of a club
associated with the Club, and opposed the proposal. Mr
Papaconstuntinos was also employed by the Construction, Forestry,
Mining and Energy Union ("the CFMEU"). Shortly before the
EGM, Mr Holmes à Court faxed a letter to Mr Andrew Ferguson,
the State Secretary of the CFMEU, which Mr Papaconstuntinos claimed
contained defamatory imputations. The letter was published to a
small number of other people. Mr Papaconstuntinos sued Mr Holmes
à Court for defamation.
Sufficient interest to attract qualified privilege?
At trial, Justice McCallum held that the letter conveyed three
imputations defamatory of Mr Papaconstuntinos, including that he
was reasonably suspected of corruptly misusing funds. Despite
finding that the recipients of the letter had an interest in
receiving the information, and not denying that Mr Holmes à
Court had some interest in conveying it, Justice McCallum did not
consider that such interest as existed was sufficient to give rise
to the defence of qualified privilege. Mr Papaconstuntinos was
awarded damages of $25,000. Mr Holmes à Court appealed.
The NSW Court of Appeal overturned Justice McCallum's
decision and entered judgment for Mr Holmes à Court. Mr
Papaconstuntinos appealed to the High Court.
The High Court
In appealing to the High Court, Mr Papaconstuntinos contended
that a defendant who is seeking to protect purely personal
interests in making a defamatory statement must not only have some
identified interest to protect, but also a pressing need to protect
that interest. The majority said that Mr Papaconstuntinos was
really seeking to identify a test of reasonableness of the
defendant's conduct as a further qualification of the
The majority rejected this approach. They observed that, if the
defendant has a legitimate interest to protect in making the
defamatory statement, the occasion is protected by qualified
privilege. There is no requirement:
that self-interest operates as a disqualification or demands
something more, such as some compelling or pressing need or
urgency, to justify the statement; or
that it be reasonably necessary to have made the defamatory
statement at the time the statement was made.
Accordingly, the majority dismissed the appeal.
Clayton Utz communications are intended to provide
commentary and general information. They should not be relied upon
as legal advice. Formal legal advice should be sought in particular
transactions or on matters of interest arising from this bulletin.
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This article sets out the circumstances in which privilege for legal communications could be lost or waived.
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