Case: Roberts v Bass [2002] HCA 57 ; (2002) 212 CLR 1
Outcome: applied
common law protects a defamatory statement made on an occasion where one person has a duty or interest to make the statement and the recipient of the statement has a corresponding duty or interest to receive it. Communications made on such occasions are privileged because their making promotes the welfare of society. But the privilege is qualified hence the name qualified privilege by the condition that the occasion must not be used for some purpose or motive foreign to the duty or interest that protects the making of the statement (per Gaudron, McHugh and Gummow JJ in Roberts v Bass [2002] HCA 57 ; (2002) 212 CLR 1 at [62] and [75]). A purpose or motive that is foreign to the occasion and actuates the making of the statement is called express malice. The term 'express malice' is used in contrast to presumed or implied malice that at common law arises on proof of a false and defamatory statement. Proof of express malice destroys qualified privilege. Accordingly, for the purposes of that privilege, express malice is any improper motive or purpose that induces the defendant to use the occasion of qualified privilege to defame the plaintiff (per Gaudron, McHugh and Gummow JJ in Roberts v Bass at [75]). In Roberts v Bass at [10] Gleeson CJ illustrated what was meant by express malice as follows: '... if the privileged occasion is the making by A of a report to B about the character or conduct of C, in pursuance of a duty or interest, then if the dominant motive for the making of a defamatory statement in the report is a desire to injure C, that defeats the privilege. The occasion has been misused. In that context, an honest expression of opinion about C's character or conduct is the obverse of a statement made with the dominant motive of injuring C.' Malice means a motive for, or a purpose of, defaming the plaintiff that is inconsistent with the duty or interest that protects the occasion of the publication. It is the motive or purpose for which the occasion is used that is ultimately decisive, not the defendant's belief in the truth of the matter (per Gaudron, McHugh and Gummow JJ at [79]). Improper motive in making the defamatory publication must not be confused with a defendant's ill-will, knowledge of falsity, recklessness, lack of belief in the defamatory statement, bias, prejudice or any other motive than duty or interest for making the publication. If one of these matters is proved, it usually provides a premise for inferring that the defendant was actuated by an improper motive in making the publication. Indeed, proof that the defendant knew that a defamatory statement made on an occasion of qualified privilege was untrue is ordinarily conclusive evidence that the publication was actuated by an improper motive. But, leaving aside the special case of knowledge of falsity, mere proof of the defendant's ill-will, prejudice, bias, recklessness, lack of belief in truth or improper motive is not sufficient to establish malice. The evidence or the publication must also show some ground for concluding that the ill-will, lack of belief in the truth of the publication, recklessness, bias, prejudice or other motive existed on the privileged occasion and actuated the publication (per Gaudron, McHugh and Gummow JJ in Roberts v Bass at [76]; see also per Kirby J at [185]). A defamatory imputation is presumed to be false and it is for a respondent to show that it is substantially true.