The NSW Court of Appeal has delivered another judgment confirming the difficulty in Australia of establishing the qualified privilege defence for media defendants. The NSW Court of Appeal handed down its decision in Lloyd-Jones v Allen ([2012] NSWCA 230) on 1 August 2012.  Justice Henric Nicholas wrote the leading judgment, with which Justices Ruth McColl and Margaret Beazley concurred.

imageTony Allen (pic) the Mayor of Bega Valley Shire Council, brought defamation proceedings against a local community worker and Franciscan sister, Laurel Lloyd-Jones in respect of an email she sent to an ABC journalist, The Sydney Morning Herald news desk and 17 members of a local action group known as the Committee for Reconciliation and Justice.

The email was a copy of a letter to then Premier of NSW, Nathan Rees, outlining some rather sordid goings on involving some Aboriginal and non-Aboriginal citizens of Bega.  District Court Judge Andrew Colefax heard the trial without a jury.

Lloyd-Jones raised defences of truth, common law qualified privilege and comment. The trial judge found that four of the five pleaded imputations were conveyed and defamatory of Allen. He rejected all the defences and made a finding of malice. The mayor was awarded $65,000 plus costs.

The appeal focused on the defences (in particular common law qualified privilege) and the finding of malice.

The plaintiff filed a notice of contention challenging Colefax DCJ’s finding that publication of the email to the committee members had been made on an occasion of qualified privilege.

As to the defence of truth, the Court of Appeal held that the trial judge had failed to properly consider the evidence in respect of two of the imputations found to arise.

It followed that Colefax DCJ’s rejection of the truth defence in relation to those imputations could not stand.

As to the defences of comment, whilst describing the trial judge’s reasoning as “succinct” (it comprised one sentence only) the court held that the found imputations were statements of fact – rather than comments – and that there was no proper basis for any comment in any event.


Of most interest is the court’s reasoning in relation to the defence of common law qualified privilege – a defence which has received much judicial attention from the NSW Court of Appeal and the High Court in recent years.

The court upheld the trial judge’s finding that publication of the email to the members of the committee was privileged. That finding, on the facts, is clearly correct.

As to the trial judge’s finding that the publications to the ABC journalist and the SMH news desk were also privileged, the court disagreed.

imageJustice Nicholas (pic) focussed on the potentially wide ambit of publication and the absence of any special and reciprocal interest between publisher and recipient in holding that these publications were not privileged.

This reasoning is in keeping with the traditional view that the defence of qualified privilege is not available where mass media publications are involved – even where (as here) the subject matter involves Aboriginal issues and the actions of politicians.

Colefax DCJ had found malice on the basis that the imputations were false and that the defendant knew them to be false, and that the inclusion of some allegation in the email was unnecessary.

The appellant challenged this finding, and the court found that the trial judge’s reasoning in respect of malice was fundamentally flawed in that he had failed to properly assess the defendant’s evidence on this issue.

It followed that the defence of qualified privilege was made out in respect of the publication to the committee members.

The court set aside the damages award and ordered a new trial limited to the defence of truth to two imputations in the publications to the ABC and the SMH.

Each party was ordered to pay their own costs of the appeal.

This is yet another appellate decision in relation to the defence of qualified privilege in which an appeal court has found that the trial judge got it terribly wrong.

That is perhaps not surprising, given the legal complexities surrounding the defence and the fact that this particular defence – more than most – turns on the particular factual circumstances giving rise to the particular publication involved.

The defence of qualified privilege is a very tricky thing and much depends upon how cases are framed and argued.

The most interesting aspect of this decision is, however, that it yet again confirms the very limited operation in Australia of the defence of qualified privilege in circumstances where mass media publications are involved.

The contrast with the position in England could not be starker.

There, in recent years the Reynolds qualified privilege defence has been re-interpreted by the courts so as to provide media defendants with a very effective defence for mass media publications.

If the situation in Australia is to change, then media defendants must push for the introduction of a Reynolds type qualified privilege defence here.

Some tentative steps have been taken in this direction – for example in the recentMundine appeal – but Australian courts seem unwilling, at least for the time being, to grant more freedom to publishers.

That does not mean, however, that further attempts should not be made.

Graham Hryce is a Sydney media lawyer.

This post originally appeared in the Gazette of Law and Journalism – Australia’s leading online media law journal.