High Court rejects “pressing need” as qualified privilege defence requirement – the South Sydney Rabbitohs defamation case

Tony Papaconstuntinos v Peter Holmes à Court [2012] HCA 53

A High Court majority has dismissed Tony Papaconstuntinos’s appeal against a finding that Peter Holmes à Court had successfully made out a defence of qualified privilege against Papaconstuntinos’s defamation claim against him.

Background

In 2005, the South Sydney District Rugby League Football Club (aka the Rabbitohs) was struggling financially.  Holmes à Court, together with Hollywood megastar Russell Crowe, approached the Club with a rescue proposal - they would inject $3 million in exchange for a controlling interest in its management.

At the time, Papaconstuntinos was a director of the Club.  He was also an employee of the Construction, Forestry, Mining and Energy Union (CFMEU), and a huge Rabbitohs supporter.  He was brought to the club’s Board by George Piggins, Chairman of the Board at the time, apparently because Piggins thought it would be good for the club to “have a union involved”.¹

The financial lifeline proposal was controversial.  It bitterly divided club members.  Papaconstuntinos was firmly in the “no” camp.  General meetings were called.  Mud was slung.  Then, in March 2006, Holmes à Court wrote a letter.

The letter

Holmes à Court’s letter was addressed to the State Secretary of the CFMEU, Andrew Ferguson, and copied to Nicholas Pappas, a solicitor and former Chairman of the club.

It recorded Holmes à Court’s formal complaint against Papaconstuntinos and his involvement in the club and set out Holmes à Court’s concerns about how Papaconstuntinos was communicating the Holmes à Court/Crowe financial lifeline proposal.  It was a strongly written letter.

Two days after publication of the letter, the club held an extraordinary general meeting to consider the financial proposal.  The evidence was that Papaconstuntinos was abused by fellow members at the EGM, with disparaging statements about him shouted out during the meeting. 

At the trial

The trial judge (McCallum J) found Holmes à Court’s letter was circulated to Pappas, three people in the CFMEU and, possibly, some of Papaconstuntinos’s fellow directors on the club’s board.  The trial judge found that members held the views expressed in the letter before it was published.²

McCallum J found the letter contained three defamatory imputations, namely that Papaconstuntinos:

(a) “repeated information he knew to be misleading about [Holmes à Court’s] proposal to take a controlling interest in the [Football Club]”;

(b) “was reasonably suspected by [Holmes à Court] of corruptly arranging for funds meant for the [Football Club] to be channelled to himself”; and

(c) “was reasonably suspected by [Holmes à Court] of corruptly channelling overpayments by the [Football Club] to the CFMEU.”³

Holmes à Court relied on the common law defence of qualified privilege to deal with the defamation claim.  The defence was described by McHugh J in Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366 (Bashford) at para [53] in this way:

At common law, a defamatory statement receives qualified protection when it is made in discharge of a duty or the furtherance or protection of an interest of the maker of the statement or some person with whom the publisher has a direct, business or social connection, and the recipient of the statement has a corresponding duty to receive or interest in receiving it…⁴

The common law QP defence requires that the maker and recipient of a defamatory statement have an interest in what is conveyed: Cush v Dillon (2011) 243 CLR 298, 305.⁵

McCallum J found that the recipient of Holmes à Court letter - Ferguson, and Brian Parker, the immediate supervisor of Papaconstuntinos at the CMFEU - had an interest in receiving the information contained in the letter.⁶  However her Honour did not find that Holmes à Court had an interest in those matters sufficient to justify the common law defence coming to Holmes à Court aid.⁷  In so doing, the judge relied on the dicta of McHugh J in Bashford (at [73]), which brought forward the idea of there being a requirement of a “pressing need” being present for the QP defence to apply.

Different considerations apply when the defendant volunteers defamatory information. Ordinarily the occasion for making a volunteered statement will be privileged only where there is a pressing need to protect the interests of the defendant or a third party or where the defendant has a duty to make the statement to the recipient. The common law has generally perceived no advantage to society in giving qualified privilege to volunteered statements in the absence of a pre-existing reciprocity of interest between the defendant and the recipient. It has taken the view that the reputation of the defamed should be preferred over the freedom to publish volunteered but defamatory statements that may or may not be true. [Emphasis added.]

McCallum J found that Holmes à Court did not have a “pressing need” to protect his interests.⁸  She found for Papaconstuntinos, and awarded him $25,000 in damages.

The appeal to the NSW Court of Appeal, and on further to the High Court

Holmes à Court appealed the decision to the NSW Court of Appeal.  It reversed the trial judge’s decision.  McColl JA found (with Allsop P, Beazly, Giles and Tobias JJA agreeing) that the concept of “pressing need” in Bashford, and relied upon by McCallum J at trial, was not part of the test of whether the defence of qualified privilege applied in Australia.⁹

Having been granted special leave, Papaconstuntinos appealed to the High Court.  He argued that the Court of Appeal was in error on the Bashford “pressing need” decision in defamation cases concerning voluntary statements .

A High Court majority affirmed the Court of Appeal’s finding that there is no requirement for a publisher seeking to invoke a QP defence to show there was a “pressing need” to protect his or her interests in making the communication complained of.¹⁰

The High Court considered a number of cases relied on by Papaconstuntinos’s legal team, including Toogood v Spyring (1834) 1 Cr M & R 181 (Toogood) in which Parke B said of the common law defence of qualified privilege:

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.¹¹

This passage was relied on by McHugh J in Bashford,¹² who relied on the idea of “exigency” to support the criterion of “pressing need”.

The High Court found that although the Parke B passage in Toogood was often quoted with approval, it was not a complete statement of the law on the subject, nor was it intended to be as definitive.¹³

Lavan Legal comment

The High Court’s decision gives clear confirmation to the Australian position on qualified privilege -- “pressing need” forms no part of the common law defence here.

The QP defence requires that the publisher has either a duty or interest in making a defamatory statement, which is shared by the recipient of the statement.  It requires a reciprocity of duty and interest, but neither party needs to have a “pressing” interest in the statement being made for the defence to apply.

Papaconstuntinos argued that a higher standard of “need” was a precondition to Holmes à Court invoking the QP defence.  In rejecting this argument, and reaffirming the reciprocity test, the High Court has ensured the defence has not been diluted, and will be available as a protector of free speech if the necessary elements of reciprocity of interest and duty are present.