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1 4 Oct 2011 Peter Holmes a Court IN THE HIGH COURT OF AUSTRALIA SYDNEY REGISTRY No. S319 of2011 BETWEEN TONY PAPACONSTUNTINOS Appellant HIGH COURT OF AUSTRALiA FILED AND 1 4 OCT 2011 PETER HOLMES A COURT 10 THE REGISTRY SYDNEY Respondent APPELLANT'S SUBMISSIONS Part I: Internet Publication 1. The appellant certifies that these submissions are in a form suitable for publication on the internet. Part II: Statement of issues 2. The case raises the correctness of two propositions: 20 (a) Defamatory communications made by a defendant in defence of the defendant's personal interests will only be protected by the common law defence of qualified privilege where a reasonable person in the defendant's position would have thought that publication was necessary for the defence of those interests (reasonable necessity test). (b) In the case of a volunteered corrnnunication to defend interest, the defendant will ordinarily fail the reasonable necessity test unless there was a pressing need for the communication to be made. Part III: Section 78B of Judiciary Act 1903 ( Cth) 3. The appellant considers that no notice pursuant to section 78B of the Judiciary Act 1903 30 ( Cth) is required. Part IV: Citation of decisions below 4. The decision of the Court of Appeal is reported at [2011] Aust Tort Reports '1!82-081. The medium neutral citation is [2011] NSWCA 59. 1 5. The trial judge's decision is not reported. The medium neutral citation is [2009] NSWSC 903. Part V: Factual background 6. In August 2005 the respondent and Mr Russell Crowe put forward a proposal to inject $3 million into the South Sydney District Rugby League Football Club (Souths) in exchange for a controlling interest. The bid was to be put to the Souths' members' vote at an Extraordinary General Meeting to be held on Sunday, 19 March 2006. 7. At the time of the proposal, the appellant was one of the directors of South Sydney Leagues Club, a licensed club associated with Souths (the Club). He was a strong 10 opponent of the proposed takeover of Souths. He was employed by the Construction, Forestry, Mining and Energy Union (CFMEU). 8. On Friday 17 March 2006, two days before the proposed Extraordinary General Meeting, the respondent sent a letter of complaint to Mr Andrew Ferguson, the State Secretary of the CFMEU by facsimile. The letter was copied to Mr Nicholas Pappas, a solicitor and former Chairman of Souths. The letter also came to the attention of the appellant's immediate supervisor at the CFMEU, Mr Brian Parker. The letter is set out in paragraph 27 of McColl JA's reasons for judgment. In the concluding sentence of the letter, the respondent asked Mr Ferguson to contact him that day. 9. At first instance, the trial judge (McCallum J) found that the letter was published to 20 Messrs Ferguson, Pappas and Parker and conveyed three imputations which were defamatory. Those imputations were: (a) that the appellant, a board member of the Club, repeated information he knew to be misleading about the respondent's proposal to take a controlling interest in Souths; (b) that the appellant, a board member of the Club, was reasonably suspected by the respondent of corruptly arranging for funds meant for Souths to be channelled to himself; and (c) that the appellant, a board member of the Club, and an official of the CFMEU, was reasonably suspected by the respondent of corruptly channelling 30 overpayments by Souths to the CFMEU. 10. Imputations (b) and (c) (referred to by McColl JA as the corruption allegations) were related to the employment of the appellant's son, Mr Jamie Papaconstuntinos, by Souths 2 in an assistant coaching position between 2003 to 2004. The respondent had become aware of the matters concerning the appellant's son's employment at Souths during the due diligence process conducted as part ofthe takeover bid for Souths. The respondent was aware of those matters by at least December 2005, if not earlier in August or September 2005. The respondent learned of no new information about this matter from December 2005 to 17 March 2006, when he sent the letter to Mr Ferguson. 11. Upon receipt of the letter, Mr Ferguson tried to contact to the respondent, leaving a number of telephone messages, indicating they were urgent. Despite the final sentence of the respondent's letter, Mr Ferguson received no response from the respondent on 17 10 or 18 March 2006. 1 The respondent did not speak to Mr Ferguson about the letter until sometime during the week of29 March 2006. 12. The respondent sought to establish two defences: common law qualified privilege and that the matter complained of was published in circumstances where the plaintiff was unlikely to suffer harm. Both defences failed. In relation to the defence of qualified privilege, the trial judge held that the defence did not apply in the circumstances but, in case this conclusion was wrong, found that malice was not made out. 13. Verdict and judgment for $25,000 was entered for the appellant. The respondent was ordered to pay the appellant's costs. 14. The Court of Appeal (Allsop P, Beazley, Giles, Tobias and McColl JJA) upheld the 20 respondent's appeal on the existence of qualified privilege. McColl JA delivered the leading judgment, with which the other members of the Court agreed. AllsopP made some additional observations with which Beazley and Tobias JJA agreed. Part VI: Argument A. The reasoning in the courts below 15. At both first instance and before the Court of Appeal, the respondent's qualified privilege defence was based solely on the protection or furtherance (together, defence) of the respondent's personal interests. The respondent never raised an issue of duty. 1 This is demonstrated by the following paragraph in a letter sent by Mr Ferguson to the respondent at some time after 18 March 2006: "In your correspondence you indicated that you would respectfully request to hear from me on Friday. I left numerous phone messages for you on Friday and left my phone on all weekend. I am available to meet you to discuss these issues further." The Jetter was demonstrably not finished until after the weekend although the date 17 March 2006 was not corrected. 3 16. At first instance, the trial judge held2 (a conclusion endorsed by Allsop P)3 that Mr Ferguson and Mr Parker had an interest in receiving the letter. However, the trial judge did not accept that the respondent had "an interest that justified his publishing information on [the misuse of funds suspected by the respondent] to Mr Ferguson at the time that he did". 4 Her Honour did not accept that publication of that material "was 5 fairly warranted by any reasonable occasion or exigency" : (a) There was no "pressing need" for the respondent to protect his interests by volunteering the defamatory information about the events surrounding the employment of the appellant's son in 2003 to 2004.6 10 (b) Furthermore, the respondent had no reasonable basis for making the corruption allegations. The suggestion that the matters concerning the corruption allegations explained the appellant's opposition to the takeover bid was tenuous? (c) Finally, the timing of the letter did not provide an opportunity for the facts in the letter to be checked. 8 17. The Court of Appeal reversed the trial judge's conclusion concernmg qualified privilege. 18. First, the Court held that the respondent had a legitimate interest in publishing the defamatory letter, described variously as the "real possibility or expectation" that 20 publication would bring about the intervention of the applicant's superiors9 or the "tangible interest in his takeover bid for Souths succeeding" .10 19. Secondly, Allsop P held that the trial judge was wrong to conclude that the publication was not "fairly warranted" .11 McColl JA did not directly deal with this issue, but her Honour's conclusion (at [142]-[146]) is an implicit rejection of the trial judge's conclusion on this issue. The error identified was the trial judge's reliance on the requirement to establish "pressing need" in the case of volunteered communications, 2 [2009] NSWSC 903 at [62], [64] and [67]. 3 [2011] NSWCA 59 at [7]. 4 [2009] NSWSC 903 at [68]. 5 [2009] NSWSC 903 at [72]. 6 [2009] NSWSC 903 at [69]. 7 [2009] NSWSC 903 at [70]. 8 [2009] NSWSC 903 at [71]. 9 [2011] NSWCA 59 at [9]. 10 [2011] NSWCA 59 at [142]. 11 [2011] NSWCA 59 at [10]; see also [7]. 4 sourced from the following statements of McHugh J in his dissenting judgment m Bashford v Information Australia (Newsletters) Pty Ltd (Bashford): 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. 12 But where neither life is in immediate danger nor harm to the person or injury to property imminent, the fact that the defendant has volunteered defamatory matter is likely to be decisive against a fmding of qualified privilege. 13 10 20. McColl JA concluded that McHugh J's statements were unsupported by authority and did not reflect Australian law. Her Honour said that the existence of qualified privilege "turns on a close examination of all the circumstances of the publication". 14 McColl JA sought to explain previous decisions of the Court of Appeal which had endorsed McHugh J's statements. 15 Allsop P gave short supplementary reasons to the same effect, stating: "Pressing need is not a superadded precondition for qualified privilege, even ifthere be an interest in the publisher, if the publication is voluntary." 16 B.
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