Case: Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5 ; (2004) 218 CLR 366
Outcome: followed
Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5 ; (2004) 218 CLR 366 ( Bashford ), Gleeson CJ, Hayne and Heydon JJ said in a joint judgment that the principles to be applied in determining whether an occasion of publication was one of qualified privilege are well known. Their Honours referred to Toogood v Spyring (1834) 1 Cr M &amp; R 181 (149 ER 1044) and Adam v Ward [1917] AC 309. They quoted (at [9]) the following oft cited statement made by Parke B in Toogood v Spyring (at 193) (ER 1049-1050): In general, an action lies for the malicious publication of statements which are false in fact, and injurious to the character of another (within the well-known limits as to verbal slander), and the law considers such publication as malicious, unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. In such cases, the occasion prevents the inference of malice, which the law draws from unauthorized communications, and affords a qualified defence depending upon the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society ; and the law has not restricted the right to make them within any narrow limits. [my emphasis] Their Honours said (at [9]) that "[r]eciprocity of duty or interest is essential", citing Adam v Ward at 334 where the following statement appears: It was not disputed, in this case on either side, that a privileged occasion is, in reference to qualified privilege, an occasion where the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential. I return now to Bashford (see [279] above). In Bashford , the publisher of a trade newsletter was sued for defamation. The High Court held (5:2) that the occasion was one of qualified privilege. The reciprocity of duty or interest necessary to attract the defence existed because only persons responsible for occupational health and safety subscribed to the newsletter and it covered only that subject. The majority rejected a submission that qualified privilege was displaced because the newsletter was published for profit. Their Honours acknowledged that in Macintosh v Dun , the fact that the mercantile agency was in the business of providing information for profit appeared to have been an important consideration leading to denial of the defence of qualified privilege. However, they thought it would be wrong to isolate the element of profit and to conclude that its presence will necessarily always deny the availability of the defence. In relation to Macintosh v Dun , their Honours said (at [16]): ... [F]urther elements were identified: the disclosure of confidential information would be sought, and it would likely be sought by means condemned as at least inappropriate, if not unlawful. While these further considerations were seen as following from the existence of the profit motive, they were considerations critical to the conclusion that the occasion was not privileged. In their joint judgment, Gleeson CJ, Hayne and Heydon JJ thought it important to recognise that the Privy Council in Macintosh v Dun did not endorse the proposition that had been urged in the Full Court that payment for information necessarily denies that the occasion of its communication is privileged (at [20]). Similarly, their Honours considered that the Privy Council did not hold that the voluntary assumption of obligation (whether by contract or otherwise) was necessarily inconsistent with the existence of mutual duty or interest. Their Honours said (at [20]): What distinguished Macintosh from Howe &amp; McColough was the nature of the information conveyed and the manner of its collection. In Macintosh information which included private or confidential material gathered from and about third parties was being conveyed; in Howe &amp; McColough , information about a transaction to which the maker of the statement was a party was passed on. In Macintosh , the fear was that inappropriate methods would be used to assemble the information; in Howe &amp; McColough , the person who made the communication already possessed relevant knowledge. It is noteworthy that s 30(5) of the uniform Defamation Act 2005 now reflects the view expressed in Bashford that the defence of qualified privilege is not defeated simply by the fact that the defamatory matter is published for reward. Following their discussion of Macintosh v Dun , Bashford and the uniform Defamation Act 2005 , the learned authors: Trindade, Cane and Lunney, The Law of Torts in Australia (4 th Ed, OUP, 2007) have no hesitation in saying that "[t]he communications of credit agencies to their client will therefore now be regarded as being covered by this category of qualified privilege" (at [7.7.4.1.1] p 394). I agree: and consider that s 30(5) reflected, rather than changed, the law in this respect.