In December 2012, the High Court gave some useful guidance in common law qualified privilege in its decision in Papaconstuntinos v Holmes a Court  HCA 53. Just when can a person make defamatory allegations against another person and make out the qualified privilege defence?
When Peter Holmes à Court and Russell Crowe proposed to buy a controlling interest in the South Sydney District Rugby League Football Club (Club), Mr Tony Papaconstuntinos (Mr Papa) was a vociferous opponent of the plan. He was also a director of the Club and an employee of the Construction, Forestry, Mining and Energy Union (CFMEU).
Mr Holmes à Court reviewed the Club's accounts and conducted a due diligence of the Club's operations. The results of these investigations caused him to write a formal letter of complaint to the CFMEU, which related a series of facts concerning Mr Papa and his son Jamie, who was formerly employed by the Club as an assistant coach. The letter noted that Jamie was paid approximately AU$60,000 for his services when the normal rate was closer to just AU$4,000 and that Jamie's employment was terminated when the overpayments were discovered. The letter suggested that the overpayments were made as "a reward for other activities, or a method of channelling funds to the CFMEU, or indeed to Mr Tony Papa". The letter went on to say that the salary was paid by construction companies that were sponsors of the Club. At first instance, the trial judge observed that these companies may have had a motive for keeping the CFMEU happy and found the facts were "inherently suspicious".
The letter clearly contained defamatory imputations. In upholding Mr Holmes à Court's defence of common law qualified privilege, the plurality found that the maker of the statement does not have to establish some "pressing need"to publish the statement. Rather, the defence requires reciprocity of duty and interest – the maker has a duty or interest in making the statement and the recipient has a duty to hear or an interest in hearing it. Mr Holmes à Court established that he had an interest in making the statement and the CFMEU had a duty to hear or an interest in hearing it.
The other 2012 High Court decision handed down was Harbour Radio v Trad  HCA 44, which addressed a number of issues, the primary one being "reply to attack" qualified privilege.
This defence provides an opportunity for a person defamed to respond to an attack in the same medium as the attack (eg in a newspaper if the attack was similarly made through a newspaper) and be protected by qualified privilege. This is a significant extension of the defence as it usually only applies where publication is made to those with a real interest in the subject matter.
The facts involved a public speech at a rally in the aftermath of the riots in the Sydney suburb of Cronulla, where the plaintiff accused Radio 2GB of being racist. In a broadcast the next day on 2GB, the host Jason Morrison accused Mr Trad of inciting people to commit acts of violence and stirring up hatred against a 2GB reporter covering the rally. A jury found a number of imputations conveyed (the action was under the old Defamation Act 1974 (Cth) where a jury decides what imputations are conveyed). The trial judge upheld defences of truth, contextual truth, comment and qualified privilege (rejecting a claim for malice). The Court of Appeal reversed the truth and comment findings and found that three of the imputations were not published under qualified privilege as they were not sufficiently linked to the subject matter under privilege.
The High Court had to decide whether the reply to the attack by 2GB had (as a matter of law) to be reasonably proportional to the attack, similar to the requirements of the criminal defence of self-defence, or alternatively whether the reply simply had to be relevant to the subject matter, with anything outside that being outside the "umbrella" of the privilege. The majority decided that it was an issue of relevance and not proportionality and all but two of the imputations were relevant and therefore privileged. Heydon J dissented and found that 2GB was motivated by malice (the majority refused leave to seek to cross-appeal out of time on the issue of malice, so it was not addressed by the majority).
Given that two imputations were not privileged, the High Court referred the matter back to the Court of Appeal to consider the defence of contextual truth for these two imputations and if found not to succeed, to remit the matter to the trial judge to decide damages on those two imputations. The case has therefore provided some certainty around the precise requirements for the defence of "reply to attack" qualified privilege.
PALACE FILMS PTY LTD V FAIRFAX MEDIA PUBLICATIONS  NSWSC 1136
Another developing area of law is the statutory restriction on certain corporations in suing for defamation. Since 2005 (uniform Defamation Acts) companies cannot sue unless they have less than 10 employees or contractors or are not-forprofit companies. Those acting for such organisations are bringing more imaginative actions such as injurious falsehood or misleading conduct, each of which has its own challenges. In this case, McCallum J found that as the plaintiff (which was a company with less than 10 employees) was a non-trading company and therefore had no reputation to be damaged and could not succeed in such an action.
BENNISON V O'NEIL  NSWSC 360
A local councillor sued a member of the public who had allegedly defamed him whilst making submissions during a council meeting of Sydney's Lane Cove Council. In fact, the defendant accepted the denial by the plaintiff of the allegation and withdrew the allegation at the very same meeting. Therefore, it was held that the allegation had been completely neutralised by the withdrawal (known as bane and antidote) of the allegation and the statement of claim was therefore struck out.
Finally, set out to the right are two damages awards to take note of.
HABIB V RADIO 2UE & ANOR  NSWDC 12
Three broadcasts were made that the plaintiff was dishonest in trying to get a disability pension even though he ran in the City to Surf race and that he attempted to deceive Centrelink by seeking such a pension and was therefore a welfare cheat. Damages awarded after all defences failed were AU$70,000 for the first broadcast, AU$25,000 for the second plus aggravated damages of AU$25,000 and AU$25,000 for the third broadcast.
CLARKE V COLES SUPERMARKETS AUSTRALIA PTY LTD  NSWDC 107
This case involved claims for defamation, injurious falsehood, assault, intimidation, harassment and wrongful imprisonment, which involved an accusation of non-payment for goods that was directed at the plaintiff in Coles Supermarket to the effect that the plaintiff had consumed, without first paying for (and had therefore stolen) raw prawns from the supermarket. All actions were rejected except defamation and defences of truth and qualified privilege were rejected. Damages awarded were AU$50,000, including AU$10,000 for aggravated damages.
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