BLB1101 Australian Legal System In Context Assignment 3 – Australia.
Subject Code & Title : BLB1101 Australian Legal System In Context
Assessment Type : Assignment 3
Word limit : Total 1600 words (Part A 750 words and Part B 850 words excluding footnotes and bibliography and a 10% leeway applies on both parts of the assessment.
Total marks : 50 marks = 50% of total marks for the unit (Part A + Part B)
Submission requirements : Submit electronic copy Assessment 3 drop box link on unit’s VU Collaborate space. Also read this Unit of Study Guide and the cover sheet for warnings regarding collusion and plagiarism and information about avoiding those behaviours.)
BLB1101 Australian Legal System In Context Assignment 3 – Australia.
Late penalty :
5% per day including any weekend days and public holidays. Where there is any question about time of submission, the timing of the online submission will be used provided the file uploaded is in a format readable by the examiner and the online marking system. Please note that the drop box will close 3 days after the due date at 5pm on Thursday Week 4 and no submissions after this time will be marked.
Referencing requirements : AGLC4 compliant footnotes and an AGLC compliant bibliography must be included.
Requirements :
1. Font: Size 12 font New Times Roman
2.Spacing: 1.5 paragraph spacing
3. Include a bibliography (remember you need to also use footnotes). You can submit one bibliography for both parts of the assignment.
4. Title page: Your assignment should have a title page with your full name, student ID, Total Word Count and Name of Tutor and your Tutorial Group)
PART A– Critical Reflection
Task : Critical Reflection of the Australian Legal System
Weighting : 20%
Length : 750 words (See details and assessment criteria sections below)
Purpose of this assignment and ULOs assessed :
The purpose of this assignment is to :
1.Make connections to learning and aspects of the discipline.
2.Make connections between the learning, theory and unit content
3.Make connections between the legal system and social and political influences.
The unit learning outcomes assessed are :
1.Analyse the components of the Australian legal systems, and elaborate how these components intersect and interact and how lawyers use these systems (LO1)
2.Communicate using appropriate professional legal language and express ideas and perspectives LO2
3.Situate and analyse Australian legal systems within the broader contemporary social and political contexts (LO3)
Details :
This assessment is a critical reflection on your learning in this unit and contextualising of the Australian legal system. You are required to:
1.Complete all the online classes and participate in the group online discussion board activities. Read and comment on other student’s submitted work on the discussion board.
2.Attend the LIVE Guest Presentation from Parliament of Victoria.
3.Reflect on the online parliament program (if you were unable to attend the LIVE session then please let your tutor know) and on social/political factors that impact the legal system. It must include:
a) A reflection on your learning experience through your participation in the online parliament program.
Tip: Consider the positive aspects of the experience, how it improved your learning how it connects to your studies/career objectives
BLB1101 Australian Legal System In Context Assignment 3 – Australia.
b) A comparison and reflection between the experience of participating in the online parliament program and other outside experiences (eg previous learning, workplace experiences etc)
c) A reflection upon social and political factors that impact the Australian Legal System. Pick one theme for this part of the critical reflection (Hint: refer to Session 5, Session 6 or Session 7) This part will require some research.
This assessment is an individual task. It is a critical reflection of your study in this unit and should not be recount of the class activities/content. You will need to do some research to write your reflection upon social and political factors that impact the Australian Legal System.
Structure/Presentation
1.Use sub-headings
2.You can write in first person language.
PART B – Legal Reasoning Task
Task : Legal Reasoning Task
Weighting : 30%
Length : 850 words (See details and assessment criteria sections below)
Relationship to other tasks and assessments
In Module 9 you completed a team legal reasoning exercise which you received feedback in class. Use the feedback from that class to prepare your response to Part B. During that in class activity you developed your ability to work collaboratively to solve a legal problem using legal reasoning.This assessment task assesses your ability to solve a legal problem using legal reasoning on an individual basis.
Purpose of this assignment and ULOs assessed
The purpose of this assignment is to:
1.Acquire foundational skills in identifying and explaining relevant law and applying the law in resolving disputes.
2.Build your skills in interpretation of legislation.
3.Develop written skills in persuasive legal analysis and reasoned argument.
The unit learning outcomes assessed are:
1.Communicate using appropriate professional legal language and express ideas and perspectives LO2
2.Articulate and write about law in a coherent and professional way (LO4); and
3.Work collaboratively and independently in order to use legal reasoning to create and present logical structured answers to problem-style legal questions.(LO5)
BLB1101 Australian Legal System In Context Assignment 3 – Australia.
Case/Scenario – Please note these facts are fiction
ALSIC Radio station is a talk back radio station. Recently the station was discussing the recent protests against the COVID-19 restrictions.The talk back radio host,Tina Rocks made it clear during the broadcast that she thought these individuals were “reckless” and putting the rest of the community in danger.
On Sunday 13 September 2020, Eddy Williams, the leader of the protests delivered a speech on the steps of Parliament. In his speech he blamed ALSIC Radio station for trying to “brainwash” the community by labelling protestors as reckless.
The next day in a program that went to air on ALSIC radio station the host Tina Rocks played part of that speech and afterwards discussed the events with callers saying he was inciting violence in the community.The station received a large volume of calls. Callers expressed views of concern calling him a selfish man and stating “the police should lock him up.
Rocks described Eddy Williams as a dangerous individual. Eddy was not invited on to the program or asked to comment.
Rocks later admitted to her producer that she had facilitated the segment because she knew Eddy from High school and never really liked him.
Eddy Williams is suing ALSIC Radio Station for defamation. Assume he has satisfied the elements for a cause of action. The radio station is seeking rely on the Defence of Qualified Privilege.
Advise ALSIC Radio Station in respect to whether they would be able to rely on the Defence of Qualified Privilege, taking into account the extract from the Defamation Act 2005 (Vic) and Harbour Radio Pty Ltd v Trad [2012] HCA 44 as extracted below. You do not need to address elements for Defamation or jurisdiction.
BLB1101 Australian Legal System In Context Assignment 3 – Australia.
Note: In your advice, you should refer only to authority provided by s 30 of Defamation Act 2005 (Vic) (reprinted below) and the law provided by Harbour Radio Pty Ltd v Trad [2012] HCA 44 in the case extract provided below. You should not refer to any other legal rules (either cases or legislation) that you may happen to know but which are not expressly referred to in the attached case extract or legislation reprinted below. Be sure to demonstrate legal reasoning in your answer using HIRAC.
Legal Reasoning Extract:
Defamation Act 2005 (Vic) extract:
S30 Defence of qualified privilege for provision of certain information
(1)There is a defence of qualified privilege for the publication of defamatory matter to a person the recipient if the defendant proves that
(a)the recipient has an interest or apparent interest in having information on some subject; an
b)the matter is published to the recipient in the course of giving to the recipient information on that subject and
(c)the conduct of the defendant in publishing that matter is reasonable in the circumstances.
(2) For the purposes of subsection (1), a recipient has an apparent interest in having information on some subject if and only if, at the time of the publication in question, the defendant believes on reasonable grounds that the recipient has that interest.
(3) In determining for the purposes of subsection (1) whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances, a court may take into account
(a)the extent to which the matter published is of public interest; and
(b)the extent to which the matter published relates to the performance of the public functions or activities of the person; and
(c) the seriousness of any defamatory imputation carried by the matter published; and
(d) the extent to which the matter published distinguishes between suspicions, allegations and proven facts; and
(e) whether it was in the public interest in the circumstances for the matter published to be published expeditiously; and
(f)the nature of the business environment in which the defendant operates; and
(g)the sources of the information in the matter published and the integrity of those sources; and
(h)whether the matter published contained the substance of the person’s side of the story and if not whether a reasonable attempt was made by the defendant to obtain and publish a response from the person; and
(i) any other steps taken to verify the information in the matter published; and
(j) any other circumstances that the court considers relevant.
(4)For the avoidance of doubt, a defence of qualified privilege under subsection (1) is defeated if the plain tiff proves that the publication of the defamatory matter was actuated by malice.
(5) However a defence of qualified privilege under subsection (1) is not defeated merely because the defamatory matter was published for reward.
BLB1101 Australian Legal System In Context Assignment 3 – Australia.
Harbour Radio Pty Ltd v Trad [2012] HCA 44 extract:
Gummow, Hayne and Bell JJ:
[1]The principal issues of defamation law in this appeal from the New South Wales Court of Appeal (Tobias, McColl and Basten JJA) concern the defence at common law of qualified privilege.The proceedings are governed by the Defamation Act 1974 (NSW) (“the 1974 Act”), rather than the Defamation Act 2005 (NSW). The effect of s 11 of the 1974 Act was to preserve the common law defence.
[3]Further, the width of the principles governing the defence of qualified privilege emphasises the need, in deciding whether they apply in a particular case to scrutinise closely the circumstances of the case the situation of the parties and the events leading up to and surrounding the defamatory publication in question.
[4] The sequence of events leading up to this litigation begins in 2005 with major public disturbances in New South Wales at Cronulla Beach. These have become known generally as the “Cronulla Riots” and have been perceived by some as a confrontation between adherents of Islam and persons of European descent who are not Muslims.
BLB1101 Australian Legal System In Context Assignment 3 – Australia.
The peace rally :
[5]Approximately one week after the Cronulla Riots, the respondent (Mr xxx) attended and was one of the speakers at a “peace rally” in Hyde Park, in the centre of Sydney.This was held on Sunday and was attended by about 5000 people. Representatives of the media were present. In the course of his speech Mr Trad said:
I never lost my faith in the great people of this nation and if a handful of students can muster so many thousands of true Australians here today, then this is a poke in the eye of those racist rednecks in tabloid journalism.
Later in his speech Mr xxx used words, the effect of which was to place specifically at least part of the blame for the Cronulla Riots on the appellant’s commercial radio station, Radio 2GB. He said that there was “a great deal of shame in tabloid journalism” and that “one talk back radio station … seems to be nothing other than the mouth piece of the Howard government over the last few years”. The crowd responded “2 GB”, and Mr xxx continued, “[t]his station yes[. I]t is winning the ratings in its small niche in the Sydney market, it is winning the ratings, it is whipping up fears.” He added that Muslims in Australia were “suffering as a result of the racist actions of predominantly one radio station”.Lengthy extracts from Mr xxx speech are set out in the reasons of the Court of Appeal.
BLB1101 Australian Legal System In Context Assignment 3 – Australia.
The broadcast :
[6] In a program that went to air on Radio 2GB at about 10.05 am on the next day Monday and which lasted some 11 minutes with at least one commercial break the radio host Mr xxxx conducted a monologue. This was broken by a short excerpt from a recording of the public rally the day before,and by talk-back calls involving a discussion between him and the callers. The text of the broadcast, being the matter complained of by Mr xxx in his defamation action against the appellant (“2GB”) is set out in the reasons of the Court of Appeal.
[7] In his amended statement of claim,Mr xxx alleged that the matter complained of conveyed imputations which he identified by reference to numbered paragraphs in the text of what Mr xxx had said, as follows:
[13] Now that’s Keysar Trad at a peace rally Now I’m sorry about the quality of that [recording of the rally], but as I said Chris [Glass cock] our reporter there had to pull back because it wasn’t safe for him to be standing at the front while all this was going on.
[14] And it goes on, there is about ten minutes of this bile about how evil and hate filled this radio station is and about how we incite people to commit acts of violence and racist attitudes. I don’t think that I’ve ever quite done that, like he did. In fact I don’t think anyone here has ever done anything quite like that
[16] Now Keysar Trad you are a disgraceful individual and I’m not alone in thinking this I won’t talk to you on the air because you represent no one’s views other than your own, so you know, why you call up purporting to be from the Islamic community is beyond me. You are one guy who basically has been marginalized. And I think the more you say the more you represent to me that you are a dangerous individual to be out there trying to represent the views because I think you’re responsible about more misinformation about the Islamic community of the attitudes of Christian Australians than any other person.
[17] Now he is widely perceived as a pest, that’s the way I see him, he is not a peacemaker so why he was invited to a peace rally is beyond me
[24] I mean this guy has a media monitoring company basically watching about any reference about him or for any reference that he believes will be advantageous towards his cause and there he is straight on the phone straight on the fax pumping out letters of complaint, he is one of the most complaining people around the place and he does nothing to try to address the actual issues, he just wants to sort of hatchet job people who once gave him the privileged position that he thinks he has. (emphasis added)
The course of the litigation
[8] Section 7A of the 1974 Act sets up procedures for the trial of defamation actions which depart radically from the common law system of trial. The common law classified as a question of law the question whether the matter complained of was or was not capable of bearing a defamatory meaning, and as a question of fact for the jury whether the matter was or was not defamatory. The issue whether an occasion was one of qualified privilege was for decision by the judge, that of whether the privilege was forfeited by malice was for the jury. The s 7A structure divides the trial process into three stages.
[9] At the second stage, that pursuant to s 7A(3) of the Act, a jury found that the following eight imputations were conveyed in the 2GB broadcast and were defamatory of the plaintiff, Mr xxx
a. the plaintiff stirred up hatred against a 2GB reporter which caused him to have concerns about his own personal safety;
b.the plaintiff incites people to commit acts of violence;
c.the plaintiff incites people to have racist attitudes;
d.the plaintiff is a dangerous individual;
g.the plaintiff is a disgraceful individual;
h.the plaintiff is widely perceived as a pest;
j.the plaintiff deliberately gives out misinformation about the Islamic community;
k.the plaintiff attacks those people who once gave him a privileged position.
[10] The issues before this court require close attention to the terms of each of these imputations. The Court of Appeal correctly observed that at least some of the imputations are expressed in terms which are unclear. How ever in the amended statement of claim, by way of particulars of each imputation reference was made to a numbered paragraph in the text of the broadcast, as indicated above. Any challenge to the form of the imputations should have been taken before the s 7A jury trial.
[11] Each of these imputations constituted a cause of action, as s 9 of the 1974 Act confirmed. The third and final stage laid down by s 7A(4) required the Supreme Court (McClellan CJ at CL), not a jury, to determine all issues of law and fact relating to any defence raised by 2GB and to determine the amount of any damages to be awarded to Mr xxx. The defences upon which 2 GB relied included those of substantial truth and contextual truth respectively under ss 15 and 16 of the 1974 Act, and fair comment on a matter of public interest under Pt 3 Div 7 of the Act (ss 29–35).
[12] 2GB also pleaded that each imputation was published on an occasion of qualified privilege at common law.The occasion was said to be a response by 2 GB to the public attack by Mr xxx at the peace rally.
[13] McClellan CJ at CL dismissed Mr xxx case and entered judgment for 2 GB. His Honour found that imputations (b), (c), (d) and (g) were substantially true and had the effect that the publication of imputations (a),(h), (j) and (k) occasioned no further injury to the reputation of Mr xxx. Further, his Honour upheld the defence of qualified privilege in respect of all the imputations and rejected the claim by Mr xxx that the privilege was defeated by malice.
[16] With respect to qualified privilege, the Court of Appeal differed in part from the primary judge and held that the defence should not have been upheld as regards imputations (c), (h) and (k). This was said to be because these imputations were not “sufficiently linked” to the occasion of qualified privilege, being the response by 2 GB to the public attack by the respondent. The Court of Appeal ordered that the proceedings be remitted to the Common Law Division for the assessment of damages in relation to these three imputations.
The appeal to this Court
[17]The principal emphasis by 2GB has been upon restoration of the holding of the primary judge in its favour on qualified privilege as to all the imputations. On his part,Mr xxx seeks to expand his success in the Court of Appeal and to achieve rejection of the qualified privilege defence in respect of the remaining imputations (a) (b) (d) (g) and (j), and an order for remitter to the Common Law Division for assessment of damages on all imputations. 2 GB also complains of the treatment by the Court of Appeal of its defences of truth and contextual truth.
[18] With respect to qualified privilege, something should be said immediately about the relationship between imputations (b) and (c). The former was that Mr xxx incites people “to commit acts of violence”, the latter was that he incites people “to have racist attitudes”. The Court of Appeal upheld the defence of qualified privilege with respect to (b) but not to (c). In submissions to this court the parties submitted that each imputation should share the fate of the other. That is to say, if 2 GB succeeded in its submissions both imputations would attract the privilege, and if Mr xxx succeeded neither would do so.
[19] As remarked above, the peace rally and the broadcast were sequelae to the Cronulla Riots, which attracted considerable public attention. The defence of qualified privilege was pleaded by 2GB on the footing that the broadcast was a response made to the public after Mr xxx had attacked 2GB, in public, at the peace rally the previous day, and so satisfied the requirement for the defence of a reciprocity of duty or interest.
[20] There was some attention in submissions to this court to the nature of this reciprocity in such cases of public replies to public criticism. A starting point is that it is only in exceptional cases that the common law has recognised an interest or duty to publish defamatory matter to the general public. Each side then presented a submission as to what followed as a matter of fundamental principle. Neither submission should be accepted.
The foundation of the privilege
[33] The statement of principle by Dixon J at first instance in Penton looks to the foundation of the privilege and should be accepted. In that case, by way of response to attacks made by the plaintiff under parliamentary privilege upon the press coverage of the escape of Japanese prisoners of war at Cowra, the newspaper, of which the defendant was editor, responded that the plaintiff was “maliciously and corruptly untruthful” and “a dishonest, calculating liar”. In the action in the original jurisdiction of this court the question was whether the form of this libel took it outside the qualified privilege claimed for the occasion, so that the plea should be struck out. This was a question on which the court divided. What is presently of importance is that Dixon J said:
The foundation of the privilege is the necessity of allowing the party attacked free scope to place his case before the body whose judgment the attacking party has sought to affect. In this instance, it is assumed to be the entire public. The purpose is to prevent the charges operating to his prejudice. It may be conceded that to impugn the truth of the charges contained in the attack and even the general veracity of the attacker may be a proper exercise of the privilege if it be commensurate with the occasion. If that is a question submitted to or an argument used before the body to whom the attacker has appealed and it is done bona fide for the purpose of vindication the law will not allow the liability of the party attacked to depend on the truth or otherwise of defamatory statements he so makes by way of defence. (emphasis added)
[35] That the matter complained of is sufficiently connected to the privileged occasion to attract the defence may appear upon any one of several considerations. The matter may be sufficiently connected with the content of the attack or it may go to the credibility of the attack, or to the credibility of the person making that attack.Questions of degree inevitably will be presented.
Conclusions respecting qualified privilege
[36] Mr xxx had attacked 2 GB by placing at least part of the blame for the Cronulla Riots upon the “tabloid journalism” practiced by one particular talk-back radio station namely 2 GB. It was a relevant and reasonable response by 2GB to direct attention to the credibility of the attacker by imputing hypocrisy to Mr xxx as one who himself incited people to commit acts of violence and to have racist attitudes, and as one who at the peace rally had stirred up hatred against a 2GB reporter causing him concern about his personal safety (imputations (a),(b) and (c)).
[37] Imputation (j) ranges more widely but is linked to para [16] of the broadcast.62 In identifying Mr xxx as one who himself deliberately gives out misinformation about the Islamic community, it also seeks to undermine his credibility in complaining at the peace rally of the mistreatment of the community by 2GB. Imputations (d) and (g) are also linked by the pleading to para [16]. This text indicates that the imputations involved more than, as counsel for Mr xxx put it in this court, 2 GB “just having a crack at him”.The misinformation was said to be of such a degree of seriousness as to render him a dangerous person, thus further undermining his credibility;further, it was disgraceful for Mr Trad at the peace rally to purport to represent the Islamic community in his attack upon 2 GB when he had been marginalised by that community. Imputations (d) and (g) were protected by qualified privilege.
[38] Accordingly, the primary judge correctly concluded that 2GB’s defence of qualified privilege applied to imputations (a), (b), (c), (d), (g) and (j).
[39] Imputation (k) is obscurely expressed. Such coherence as it does have is provided by the portion of the 2 GB broadcast set out in para [24]. The imputation seems to fix upon the relationship between Mr xxx and the media as the source of the relevant reciprocity of interest. The point then made appears to be that Mr xxx rose to prominence in Islamic community affairs by use of the facilities provided by the media, yet at the peace rally he criticised the media. Imputation (k) exceeded the occasion of the privilege. The Court of Appeal correctly decided that it was not a retort by way of vindication which was fairly warranted by the occasion.
[40] With respect to imputation (h), the Court of Appeal was correct in deciding that to publish of Mr xxx that he was a pest, without more, was not a relevant response to the attack on 2 GB. Counsel for Mr xxx correctly emphasised that the charge of being a pest in no way reflected on Mr xxx’s credibility in making the charges against 2 GB.
[41] The result is that the primary judge should have held that imputations (h) and (k) were not protected; the Court of Appeal was correct with respect to imputations (h) and (k) but erred in rejecting the defence in respect of imputation (c).
[42] The question thus becomes whether this court should enter upon the issue of whether the Court of Appeal erred in failing to hold that the privilege of 2 GB with respect to imputations (a), (b), (c), (d), (g) and (j) nevertheless was defeated by the malice of 2GB.
Malice
[43] With respect to the case presented by Mr xxx on his appeal to the Court of Appeal, that the primary judge had erred in concluding that he had not proved 2 GB was actuated by malice in publishing the matter complained of, the Court of Appeal said:
BLB1101 Australian Legal System In Context Assignment 3 – Australia.
The substance of [Mr xxx’s] case on malice was that [2GB] and its agent, Mr xxxx, had taken no steps to verify the situation faced by [2 GB’s] reporter, Mr xxx, before attacking [Mr xxx] and had, accordingly done so either knowing that assertion to be false or with reckless indifference to the truth or falsity of his attack.
The difficulty Mr xxx faced was that he bore the onus of proof with respect to malice, but was not able to show precisely how Mr xxx came to form the (incorrect) views which he expressed in the matter complained of as to the situation in which Mr xxx found himself at the rally, nor what steps Mr xxx may have taken to clarify the situation. [Mr xxx] relied solely upon the fact that the videotape of the rally did not support claims of aggression towards Mr xxx and that Mr xxx said that he had viewed the video. Factually, those two statements were true, but they were not sufficient to demonstrate that Mr xxx knew what he said to be false or made his statements with reckless indifference to the truth or falsity of his attack.
[44] Against that holding by the Court of Appeal, Mr xxx seeks an extension of time to file an application for special leave to cross-appeal. 2 GB correctly responds that leave ordinarily will be refused if, were leave to file granted, there would be no grant of special leave. The grounds of the proposed cross-appeal deal both with the extension sought of Mr xxx’s success on the qualified privilege question, and with malice (ground 2(f)).
[45] Mr xxx also seeks an extension of time to file a notice of contention.The proposed notice would raise an issue respecting the truth defences and the issue that “the whole of the qualified privilege defence should have been rejected because of malice”. Insofar as the issue of malice is concerned, this goes beyond the scope of r 42.08.5 of the High Court Rules 2004, which deals with notices of contention in this court. These notices may be given only by a respondent who “does not seek a discharge or variation of a part of the judgment actually pronounced or made”. But this respondent seeks to do so. The Court of Appeal rejected part, not the whole, of the qualified privilege defence, and ordered remitter for assessment of the damages in relation to three of the eight imputations. The proposed notice of contention would be incompetent insofar as it seeks to deal with the issue of malice and an extension of time to that extent should be refused. (The question of the truth defences will be considered later in these reasons.)
[46] The issue respecting malice which Mr xxx wishes to press in this court is encompassed not by r 42.08.5, but by the proposed cross-appeal in ground 2(f), by which he seeks the setting aside of the Court of Appeal orders so as to achieve a remitter for the assessment of damages on all imputations. One ground on which this outcome is sought is that the Court of Appeal should have found that Mr xxx “had established that the reply by the employee was actuated by malice” (ground 2(f)).
[47]Leave to file the notice of cross-appeal out of time should be granted, but with the excision of ground 2(f).There would be insufficient prospects of success in demonstrating error by the Court of Appeal in its conclusions in the passage set out above to warrant a grant of special leave on proposed ground 2(f), and no ground of general importance is involved here.
[48] Mr xxx sought to bolster his case for a grant of special leave on the issue of malice by directing attention to the state of mind of Mr xxx. He, like Mr xxx, was an employee of 2GB. It was said that the issue of Mr xxx’s malice, for which his employer was vicariously liable, had been run at trial. The best passage in support was identified as one in the closing submissions by counsel then appearing for Mr xxx. This falls short of sufficient indication that the focus of the case at trial was on Mr xxx rather than Mr xxx to warrant entry by this court upon this matter. This particularly is so given the absence of agitation of the point by Mr xxx in the Court of Appeal.
Conclusions and orders :
[62] Upon his summons filed 28 October 2011 Mr xxx should have an extension of time until 14 days here after to file (a) a notice of contention limited to the truth defences as indicated in the draft notice and (b) a notice of cross-appeal limited to grounds 2(a)–(e) in the draft notice. There should be a grant nunc pro tunc of special leave to cross-appeal upon those grounds 2(a)–(e). But the cross-appeal, which seeks a result that no imputation is protected by qualified privilege, should be dismissed.
[63] The appeal by 2GB should be allowed. The orders of the Court of Appeal made on 22 March 2011 should be set aside. The appeal to that court should be allowed and the orders made by McClellan CJ at CL on 6 August 2009 set aside. There should be a declaration that the defence of qualified privilege at common law with respect to imputations (a), (b), (c), (d), (g) and (j) is made good. There should be remitted for consideration by the Court of Appeal in the light of the reasons of this court:
BLB1101 Australian Legal System In Context Assignment 3 – Australia.
(1)the defences of substantial truth with respect to imputations (b), (c), (d) and (g) and contextual truth with respect to imputations (h) and (k);
(2)any questions of remitter to the Common Law Division for assessment of damages if the Court of Appeal holds that a defence of contextual truth does not apply to imputations (h) and (k);
(3)all questions of costs of proceedings in the Common Law Division and the Court of Appeal.]
[64] In this court there should be no costs orders on either the appeal or the cross-appeal. Each side has had some, but limited, success in this court.
[83] These submissions must be rejected.
[84] First, the evidence in the form of the admission contained in the Chief Operating Officer’s letter of 3 May 2006 cannot have been relevant only to Mr Morrison’s state of mind. He was not at the rally. Mr xxx was.
[85] Secondly it is not correct to describe the address of counsel for the respondent as containing only a glancing reference to Mr xxx’s knowledge…
[86] Counsel for the appellant addressed the trial judge in reply on the question of malice over 12 pages of the transcript. He did not submit that Mr xxx’s state of mind was irrelevant to the question of the appellant’s malice. He did advance various arguments for the view that neither Mr xxx nor Mr xxx were actuated by malice. He also denied that Mr xxx was “the responsible state of mind or a part of the responsible state of mind of the appellant. But he never submitted that an inquiry into that question was not open on the pleadings or that the respondent was changing his case and should not be permitted to do so after the evidence had closed.
[91] In short there are two possibilities. One possibility is that Mr xxx falsely told his audience that Mr xxx had complained that he had been put in fear and retreated, because the respondent gestured at him: if so Mr xxx’s state of mind was malicious and the appellant is fixed with it. The other possibility is that Mr
xxx truthfully told his audience that Mr xxx had complained that he had been put in fear, and retreated because the respondent gestured at him: if so the admission by the Chief Operating Officer proved that what Mr xxx said was false, and it must have been false to his knowledge. For the above reasons that fixed the appellant with malice. Accordingly, leave to file ground 2(f) of the notice of cross-appeal should be granted. The cross-appeal should be allowed on that point. In consequence the defence of qualified privilege must fail.
[98] The appeal should be dismissed with costs…
Malice
[147] Proof of malice requires that it be shown that a defendant was actuated by an improper motive one foreign to the occasion and therefore destructive of the privilege. In this case Mr xxx pleaded that 2 GB had not made proper enquiries and had pleaded false and misleading particulars of truth. These allegations directed attention to the statements made by Mr xxx that the 2 GB reporter present at the rally Mr xxx feared for his safety because of the conduct of Mr xxx. McClellan CJ at CL observed that whilst 2 GB did not lead evidence on the issue the visual recording of Mr xxx’s speech showed the 2 GB reporter positioned in front of Mr xxx during his speech. His Honour found that the prominence of the reporter’s position his identification as a reporter from 2 GB and the obvious hostility of the crowd towards 2 GB may well have engendered a feeling of vulnerability in him. In these circumstances his Honour considered that Mr xxx may have come to an understandable, though erroneous, view that the reporter had felt it necessary to withdraw from a prominent position. His Honour was unable to conclude that Mr xxx knew his remarks were wrong or that he was improperly motivated when he made them. Although the Court of Appeal expressed reservations about the terms of his Honour’s findings it did not consider that the essential finding that Mr xxx had not been shown to have acted with malice, could be disturbed.
[148] On this appeal argument on behalf of Mr xxx was directed to the knowledge of Mr xxx as proof of malice. It was argued that Mr xxx would have known that the statement that he was concerned for his safety was untrue. I am not satisfied that this argument was squarely raised at trial or on the appeal below. In any event it misunderstands the relevant issue at trial which was not what Mr xxx may have later appreciated about what Mr xxxx had said. If 2GB were to be held vicariously liable, it would be because Mr xxxx was improperly motivated when he made the defamatory statements. The evidence did not permit such a conclusion.
BLB1101 Australian Legal System In Context Assignment 3 – Australia.
[149] I agree with the joint reasons that the respondent should be refused an extension of time to file a notice of contention on the issue of malice. I also agree that leave to file the notice of cross-appeal should exclude ground 2(f).
BLB1101 Australian Legal System In Context Assignment 3 – Australia.
[157] I agree with the orders proposed in the joint reasons, with one qualification. In my view the appellant should have its costs of this appeal and the proceedings below. It succeeded on the main issue, the application of the defence of qualified privilege, and on the issue of malice…
