On 10 August 2011, the High Court considered the question of whether qualified privilege attached to a statement (made in April 2005) to the Chairperson of a Committee known as the CMA, that: “it is common knowledge among people [on the CMA] that Les and Amanda [the plaintiffs, being Board members of the CMA] are having an affair.”

What happened was this:

• the plaintiffs sued and a trial took place in the District Court in NSW in November 2007;
• the jury found that the defendant said to the Chairperson of the CMA: “It is common knowledge among people in the CMA that Les and Amanda are having an affair.”;
• the defendant accepted that this statement was not true and she did not believe it to be true;
• the defendant pleaded qualified privilege on the basis that she had a duty to tell the Chairperson and he had an interest in hearing it;
• in a separate trial in the District Court in February 2009, relating to defences and damages, the Judge held that any privilege attached to the statement was lost, since the defendant was actuated by malice because the defendant:
  • had previously spread the rumour; and
  • did not believe the allegation to be true;
• The trial judge did not consider whether the occasion of the statement was privileged, and simply found malice;
• the trial judge awarded each of the plaintiffs $5000;
• the defendants appealed to the Court of Appeal.
• On appeal, the NSW Court of Appeal found that the trial judge erred because he failed to find that the publication occurred on a privileged occasion and set aside the orders made. The Court ordered there be a new trial in the District Court on the question of qualified privilege at common law;
• the plaintiffs then appealed to the High Court, presumably seeking to reinstate the judgments they received for $5000, rather than have another trial to determine if the qualified privilege defence could be made out.

At the High Court, it was conceded by the appellants that the reference to this rumour was made on an occasion of qualified privilege because the necessary reciprocity of duty and interest existed. What then was the argument? Why did this go all the way to the High Court? What national importance did this case have?

The Appellants argued that by using the words “it is common knowledge”, this took the statement outside the circumstances of the privilege. The question for the High Court was simply this: did the wording of the statement take it outside the occasion of privilege?

If the wording came within the parameters of the privilege, then the matter had to be sent back to the District Court for a trial on the question of whether the defendant was actuated by malice in making the statement. This is what the NSW Court of Appeal had ordered. Otherwise, presumably the appellants were asking that the judgments of the $5,000 be restored.

The High Court said the answer to the question was no. The wording did not take the statement outside the privilege. It had a sufficient connection to the occasion of privilege, and so, the privilege existed (as the appellants agreed), and referred the matter back for a third trial in the District Court, to determine the question of whether the defendant was actuated by malice. All of this over two judgments of $5,000 apiece.

Its hard to believe that this went to the High Court. Putting to one side the amount of money, and the upside to the plaintiffs had they won (damages for $5000), to get the leave of the High Court to hear an appeal involves persuading it that the case is of sufficient national importance or that a point of law needs to be clarified. The High Court decided yes, they would hear the case and then unanimously ordered that the matter return to the District Court for a trial on the question of qualified privilege, just as the Court of Appeal had ordered. You might question the futility of all of that.

Perhaps the trial on the question of malice will end up at the High Court as well? Stay tuned.