Dear All,

The High Court of Australia has considered the limits of the defence of qualified privilege in Papaconstuntinos v Holmes a Court [2012] HCA 53 http://www.austlii.edu.au/au/cases/cth/HCA/2012/53.html. The claim arose out of allegations of shenanigans at South Sydney Rugby League Club, at a time when the defendant and the actor Russell Crowe were looking to take control of the Club. The defendant had accused the claimant, who objected to the takeover, of impropriety, in a letter to a third party. The defendant sought to rely on the defence of qualified privilege at common law. The appellant claimant argued that here was a requirement that the defendant must show a "pressing need" to protect their interest.
The Court rejected that purported requirement:

"[51] The sole proposition upon which the appellant's grounds of appeal depend is that the law requires the respondent not only to prove that both he and the recipients of his letter had an interest in the matters of which he spoke, but also to justify the publication of the letter by reference to there being some pressing need to protect his interests. The appellant has failed to identify any such requirement of the law."

Nor is self-interest a disqualification:

"[38] The modern emphasis in the formulation of the defence of qualified privilege is upon duties and interests rather than the state of mind of the defendant, the latter of which would include the defendant's motive. If the defendant has a legitimate interest which the defendant seeks to protect in making the defamatory statement, the occasion for the privilege arises. There is no case which holds that self-interest operates as a disqualification or requires something more, such as some compelling need or urgency, to justify a statement."

The majority do seem (at [48]) to leave open whether there might be a reasonableness requirement (which there is in the statutory defence under s 30 of the Defamation Act 2005 (NSW)). More generally, the assessment of the authorities suggests, perhaps, that Court thinks that the limits of the defence may be ripe for review, this was not the occasion on which to embark upon such an exercise.

Heydon J, who clearly took a dim view of the defendant's behaviour, gives a characteristic dissent.

Best wishes,
James

--
James Lee
Lecturer and Director of Careers
Academic Fellow of the Inner Temple
Birmingham Law School
University of Birmingham
Edgbaston
Birmingham
B15 2TT, United Kingdom

Tel: +44 (0)121 414 3629
E-mail: j.s.f.lee@bham.ac.uk<mailto:j.s.f.lee@bham.ac.uk><mailto:j.s.f.lee@bham.ac.uk>


Web: http://www.birmingham.ac.uk/staff/profiles/law/lee-james.aspx

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