The HAIG REPORT: the EVIDENCE

It is Our legal, social and moral DUTY to EXPOSE CRIME, FRAUD & CORRUPTION plus Lying and Hypocrisy in Public Life, Including Judges & magistrates

Fraud, Corruption & attempted MURDER
covered-up by Queensland police, EXPOSED

Menu of Websites in the HAIG   REPORT: Theme of:
:
for the HAIG   REPORT: Group of Websites:
[We expect, in time, to have all of the thousands of pages on the HAIG   REPORT: group of websites accessible from the Menu of THEMES. Eventually, there will be approximately 15 themes, each with an average of 15 to 20 websites/domains/directories, with each website/domain having an average of 20 pages. This would equate to 15 x (15 to 20) x 20 = 4,500 to 6,000 pages. The Menu of Themes will be included near the bottom of each page, in time. With one line of code, strategically placed, our Menu of Themes is now on thousands of pages. We are continually and progressively adding pages to this Menu of Themes of website Menus.]

commonheader.php

Reg. Office: 254 Hawken Drive, St Lucia, Qld. 4067, Australia.
Editor-in-Chief: Russell G H Mathews BCom BSc LLB BA EMAIL us anytime: Please using

considerevidence.php

Consider the evidence! Please using

/CodingPHP/includedSeeContentPageFileNameURL.php

Click here to GoTo Detail:=> Definitions of Aspects of the Legal Process from HaigReport

../Corrupt Police& Magistrates Menu.php An example of a CASCADING Drop Down Menu.

MENU: Rantala-Gate: Corrupt Police & Magistrates Mafia.

CDDM_StartMenu160.phpCDDM_StartMenu160.phpCDDM_StartMenu160.phpCDDM_StartMenu160.phpCDDM_StartMenu160.php

See: the Menu: for Definitions of Aspects of the Legal Process from HaigReport

Follow @HaigReport

Share on Facebook Share on Facebook
/CodingPHP/includedSeeContentPageFileNameURL.php

Click here to GoTo Detail:=> Definitions of Aspects of the Legal Process from HaigReport

Follow @HaigReport

Share on Facebook Share on Facebook

See: HaigReport's Menu of Menus of Sites of Related Fraud & Corruption Topics:

Content: Definitions of Aspects of the Legal Process from HaigReport

../Corrupt Police& Magistrates Menu.php An example of a CASCADING Drop Down Menu.

MENU: Rantala-Gate: Corrupt Police & Magistrates Mafia.

CDDM_StartMenu160.phpCDDM_StartMenu160.phpCDDM_StartMenu160.phpCDDM_StartMenu160.phpCDDM_StartMenu160.php

See: the Menu: for Definitions of Aspects of the Legal Process from HaigReport

Follow @HaigReport

Share on Facebook Share on Facebook
http://HaigReport.com/includedSeeTodaysHotTopics.php

See: Today's HAIG HOT_TOPICS => Click HERE <=

../Corrupt Police& Magistrates Menu.php An example of a CASCADING Drop Down Menu.

MENU: Rantala-Gate: Corrupt Police & Magistrates Mafia.

CDDM_StartMenu160.phpCDDM_StartMenu160.phpCDDM_StartMenu160.phpCDDM_StartMenu160.phpCDDM_StartMenu160.php includedCDDMenuAvengerRevengeRetribution.php New Document includedCDDMenuCourtTranscripts.php http://HaigReport.com/includedSeeTodaysHotTopics.php

See: Today's HAIG HOT_TOPICS => Click HERE <=

Definitions regarding the Legal Process HEADING ContentMenu0076LegalProcess

Definitions regarding the Legal Process

written by Russell G H Mathews BCom BSc LLB BA
View list of my WEBSITES and Bulletin Boards
Email: http://HaigReport.com/eml.html
[go to HAIG REPORT home]

includedDefinitionAdvocatesImmunity.php

Advocates Immunity [ai]

This 'immunity' is immunity from prosecution. Anyone who works as an advocate, meaning barristers usually, but even solicitors, who advocates for clients, is immune from prosecution for anything they do that is relatted to their action or role as an advocate. This is widely and expansively interpreted. This can include anything even slightly related to the appearance in court.

Advocates' Immunity can be used by corrupt barristers to enable them to gain by assisting in fraud and corruption as in the case of vile evil Brisbane, Queensland barrister John W. Peden. Advocates Immunity combined with Client Privilege aka Legal Professional Privilege permits sycophantic fraudsters like Brisbane, Queensland barrister John W. Peden to conspire with parasites like Douglas Porter and The University of Queensland to defraud a disabled old man of his house and land for use by The University of Queensland, part of the Queensland Government; which is part of the Australian public sector. While the actions of vile evil Brisbane, Queensland barrister John W. Peden would probably be protected because part of his actions in the fraud, involved his appearance in a court. However, another lawyer involved in this fraud will not be similarly protected, because this other lawyer did not appear before a judge in a court of law. This other lawyer, knew of the detail of the fraud, as he was a confidant of Douglas Porter and The University of Queensland and did the Conveyance of the legal title of my property to a new trustee. This other lawyer is Stephen Tonge..

Australia is now alone among the major common law countries in retaining the doctrine. Canada abolished it in 1861, and even the United Kingdom - where the doctrine originated - abolished it in 2000. However, the High Court of Australia upheld the concept in a 2005 case known as D'Orta-Ekenaike. Australia's lower courts must apply the doctrine because of that 2005 decision. That decision upheld the advocate's immunity as applying to barristers and solicitors. The court followed its earlier 1988 decision in Giannarelli v Wraith which limited the scope of the doctrine to "matters that are intimately connected to the litigation". I have an LLB [Law Degree], and I have studied a substantial amount of law. "Intimately connected" cannot be considered other than legal "weasel words". People muxt consider that if they engage lawyers and barristers to "fight" their case, they are likely to have an extra fight on their hands, with the lawyers. Lawyers and judges are the only ones who win out of court cases, [unless you represent yourself]. Judges and magistrates hate having unrepresented litigants. An alternative to fighting a wrong doer in court is to become a journalist for your own journal aka Media [eg HaigReport.com ], collect all the documented evidence and proof, publish Online and invoke Qualified Privilege. If a wrong doer has done you wrong, that wrong doer has probably not singled you out. It is in the public interest to warn the community of parasites like the vile evil Brisbane, Queensland barrister John W. Peden.

Some barristers may think it is being smart to hide behind this immunity to cheat his own clients, say to support his political ideology, [as in the case of Terry Mellifont, (Terence Joseph Mellifont) before he was struck off, and barrister Jeffrey Ernest John Spender prior to his becoming a Judge of the Federal Court of Australia], or to act to initiate a proceeding which has no remote possibility of success but only to delay theoutcome and to cause cost to the defendant as was the case with Ian Callinan prior to his becoming a Judge of the HIGH COURT of AUSTRALIA. [Is there a lesson to be learned there, Spender and Callinan; re quality of Judges, and who will be appointed as judges?] The barrister has Advocates Immunity even when a court holds that such was the case and orders that the "wasted costs" be paid by the instructing solicitors, who would have no doubt been advised by the barrister/advocate of the remote chance of successful litigation, apart form the "success of delay".

Definition: Aid, Abet, Accessory, Accomplice:
In Criminal Law, the precise definition of these terms tends to vary across jurisdictions. As a result various Criminal Codes define the meaning for their jurisdiction. In fact, in some jurisdictions, the terms Aid and Abet are not used and have no formal meaning. The person is merely an "accessory". In Jurisictions where Common Law Prevails in the criminal jurisdiction, these terms will have meanings gleaned from precedents.

We will here discuss the general meaning of these terms. The meaning varies across a continium. Accomplice is the most serious effect. For instance, say for the case of an armed bank robbery, of course the person who demands the money from the teller while pointing the gun, real or artificial, is an armed robber, but so is the get-away driver gunning the car's engine outside as well as the lookout, watching for police or other problems.

An accessory, is lesser than an accomplice, and gives assistance before or after the "main event". An "accessory" has a similar meaning to one who "Aids and Abets".

Definition: Judicial Immunity

Judge's immunity [ji]

The 'immunity' is immunity from prosecution. Judges cannot be prosecuted for anything they do related to their being a judge. All that can occur is that they can be removed from office, but only on address by both houses of parliament, or so the story goes, what ever that means in practice. In practice, judges are appointed by the executive of government, usually because they have shown as barristers, that they are prepared to support that party's ideology, even if that means being crooked, as long as the strong and powerful do not suffer. With a duality of polarised political parties, there is a mutual standoff. I will leave yours alone if you leave mine alone.

A Victorian [in Australia] Goverment site lists Judicial Immunity [related to magistrates] as: "Judicial immunity is a protection given to members of the judiciary whereby they cannot be sued for actions that are performed in their judicial capacity. Magistrates can therefore make the best decisions on the cases before them, without interference or fear of adverse consequences to themselves.
When judicial decisions do result in negative or unfair consequences, there are appeal and review rights to deal with the matter." [Oh yeah: and the appeal judges have JI too, apart from putting the "victim of the judiciary" to the effort and expense and risk, of appeal.] That Victorian Government site states in the prior paragraph: "There are a number of mechanisms in place that help to protect Magistrates’ independence, such as permanent tenure, salary protection and judicial immunity." {More likely to protect judges when they make decisions based on their prejudices. It is best for them if their prejudice is based on a popular political ideology; increases likelihood of promotion to a higher court.
[go to HAIG REPORT home ]

http://HaigReport.com/includedSeeTodaysHotTopics.php

See: Today's HAIG HOT_TOPICS => Click HERE <=

Definition: Fiduciary Duty

Definition: Fiduciary Duty [fd] See also Beneficial Ownership

When one person, for example a solicitor or trustee, called the fiduciary, has a fiduciary duty to another, say the client or beneficiary respectively, the fiduciary is to work actively for the benefit and betterment of the latter. This Fiduciary Duty is far more onerous for the Fiduciary than is the Duty of Care when imposed upon a person. The Duty of Care is just to exercise reasonable care when in a position to cause harm to another; that is not to be negligent. It is even more onerous than is the duty to extend Natural Justice aka Due Process aka Procedural Fairness. The benefit and betterment of the client or beneficiary may be at the cost to or expense of another party.

What is a FIDUCIARY DUTY?? see Also Australian Disability Law Journal ISSN 1834-9609 16 July, 2007. Issue #: 200701
To emphasize FD, we have assembled some detailed definitions, [we could write a book on FD, and still leave much uncovered].

Black's Law Dictionary describes a fiduciary relationship as "one founded on trust or confidence reposed by one person in the integrity and fidelity of another." A fiduciary has a duty to act primarily for the client's benefit in matters connected with the undertaking and not for the fiduciary's own personal interest. Scrupulous good faith and candor are always required. Fiduciaries must always act in complete fairness and may not ever exert any influence or pressure, take selfish advantage, or deal with the client in such a way that it benefits themselves or prejudices the client. Business shrewdness, hard bargaining, and taking advantage of the forgetfulness or negligence of the client are totally prohibited by a fiduciary.

A fiduciary Duty is far more onerous for the Fiduciary [the one having the Fiduciary Duty], than is the Duty of Care, which can itself be quite onerous.

Wikipedia, the FREE encyclopedia defines [and we approve of this definition] fiduciary thus:

'A fiduciary duty is the highest standard of care imposed at either equity or law. A fiduciary is expected to be extremely loyal to the person to whom they owe the duty (the "principal"): they must not put their personal interests before the duty, and must not profit from their position as a fiduciary, unless the principal consents. The fiduciary relationship is highlighted by good faith, loyalty and trust, and the word itself originally comes from the Latin fides, meaning faith, and fiducia.

When a fiduciary duty is imposed, equity requires a stricter standard of behaviour than the comparable tortuous duty of care at common law. It is said the fiduciary has a duty not to be in a situation where personal interests and fiduciary duty conflict, a duty not to be in a situation where their fiduciary duty conflicts with another fiduciary duty, and a duty not to profit from their fiduciary position without express knowledge and consent. A fiduciary cannot have a conflict of interest. It has been said that fiduciaries must conduct themselves "at a level higher than that trodden by the crowd."

Definition: Inherent Jurisdiction

Inherent jurisdiction [ij]

Inherent derives from the verb 'inhere' meaning to stick, or remain firm in something. It means existing in or inseparable from something else. Courts have ij to control their internal functions. Most relevantly this relates to disciplining lawyers who are admitted to that court.
[go to HAIG REPORT home]

http://HaigReport.com/includedSeeTodaysHotTopics.php

See: Today's HAIG HOT_TOPICS => Click HERE <=

Definition: Conflict Of Duty And Duty

Conflict of Duty and Duty [codad]

The duties referred to here are fiduciary duties to clients. A solicitor/lawyer would expect to have numerous clients. The solicitor cannot agree to represent another new client when that new client has interests which, if satisfied, would result in loss to one of the existing clients of the solicitor, or vice versa, a gain by one of his existing clients would mean a loss to that potentially new client. Were he to accept that new client then he would have a conflict of the fiduciary duty he owed to the new client and the fiduciary duty he owed to his existing client. The classic case of codad occurs when a client brings along his parents or his parents in law to have their will prepared by the existing client's solicitor. No loss by either client or parents/parents-in-law need be proved nor even occur. Codad is a serious breach of Professional Standards. It is either Professional Misconduct or more seriously, Unprofessional Conduct. In either case the solicitor/lawyer should be struck off the roll of practicising lawyers and should no longer be a member of that Supreme Court. In the case of the latter, that would be permanently.

Definition: Legal Professional Privilege

Legal professional privilege [lpp] aka client privilege

Legal professional privilege [lpp] protects confidential communications between a lawyer and his or her client made for the dominant purpose of -
* seeking or giving legal advice or professional legal assistance; or
* use, or obtaining material for use, in legal proceedings that had commenced, or were reasonably anticipated, at the time of the relevant communication.
Lpp is the right of the client and it can be waived only by the client, intentionally or unintentionally.
Legal professional privilege also protects confidential communications between the client or the client’s lawyers (including communications through employees or agents) and third parties, made for the dominant purpose of use, or obtaining material for use, in legal proceedings that had commenced, or were reasonably anticipated, at the time of the relevant communication.

http://HaigReport.com/includedSeeTodaysHotTopics.php

See: Today's HAIG HOT_TOPICS => Click HERE <=

Definition: Statute v Regulation

Statute v Regulation.

The Regulation to a Statute is for the purpose of assisting in the implementation of THAT STATUTE. MOST IMPORTANTLY, IT IS SUBISDIARY TO THAT STATUTE. Public servants cannot compose and gazette a section of a regulation, to OVER-RIDE A SUBSTANTIVE RIGHT SPECIFIED IN THE STATUTE or a COMMON LAW RIGHT, eg THE RIGHT TO BE HEARD: ie Due Process by a City Council. If they could, the Parliament would be IRRELEVANT

Definition: Constructive Trust

A Constructive Trust: This trust is construed to have been created without the intention being indicated of any party; including neither the beneficiary nor the Trustee. Thus a liability is imposed in equity on a person, the Trustee, to account to certain property as if he had been a Trustee under an Express or Resulting Trust�.
http://HaigReport.com/includedSeeTodaysHotTopics.php

See: Today's HAIG HOT_TOPICS => Click HERE <=

Definition Trust/Equity

Watch this space.

Definition: Paramount Duty

When a Lawyer is admitted to the Supreme Court as an Officer of the Court, which is an essential act if the lawyer wishes to "hang up his/her shingle" and practice as a lawyer so as to offer legal services to the public, s/he is required to swear an oath, or make an affirmation to the Court. As a result, the lawyer has a Paramount Duty to the court, a duty exceeding in degree, and over-riding his/her Fiduciary Duty to each of his/her clients.

Re: Breach of Paramount Duty: Patsy Mary Wolfe:

http://HaigReport.com/images/20110606ImagePatsyMaryWolfeCr01_tnOil.jpg

Now, in October, 2012, we are pursuing the current Chief Judge District Court of Queensland, CDCJ Patsy Mary Wolfe for her role in the Judicial Fraud of Russell Mathews in a case just over 20 years ago. [The crime and fraud against Russell Mathews has continued over that whole period since.] She abogated her Paramount Duty to the Court, which, in that case was to alert the court to the evidence of the prejudicial documents that had been secretly provided to the HREOC decision maker named Kevin Patrick O'Connor, and that were then, at that time, before the court and Spender, and to alert the court and
Spender to the case precedent that made the original decision void ab initio and so unenforcible by Spender. Patsy Wolfe did not act alone. In fact, we would suggest she was not the main thrust behind the judicial fraud. At that stage, we believe Federal Court Judge was the main driver of the fraud at that time, [because of the way he wrote his judgment] to reinforce the fraud of Russell Mathews that had been instigated by the then named Human Rights and Equal Opportunity Commission [HREOC], since renamed the Australian Human Rights Commission[AHRC], under the direction of the Queensland Director of the HREOC, one Quentin Alice Louise Bryce nee Strachan, at present swanning around the world as Governor-General of Australia.

In 1994, Russell Mathews, while studying Law, in particular Administrative Law, towards his LLB at The University of Queensland, he discovered how the fraud had been effected and how Patsy Mary Wolfe had abrogated her Paramount Duty to the Court. Her Paramount Duty to the Court in that case was to alert the court to the evidence before the court and the case precedent that made the original decision void ab initio and so unenforcible by Spender. Her failure amounted to Professional Misconduct and/or Unprofessional Conduct by Patsy Mary Wolfe an admitted Officer of the Supreme Court of Queensland. That was more than enough to have her struck off as a barrister. Instead, the corrupt catholic/labor government of Queensland appointed/promoted her first to the District Court and then to Chief District Court Judge. Patsy Mary Wolfe has already been rattled by being revisited by these matters, in just a cursory manner.

Russell Mathews began campaigning via fax and email in 1994 and 1995 to parliamentarians and judiciary. On Sunday, the 14th January, 1996, at about 5 minutes to midnight,Russell Mathews was targeted in his home to be murdered by a trained killer. Consider the extent of the injuries inflicted. The further evidence of official involvement, arises because the police who were called by the ambulance refused to investigate and fabricated lame excuses for not investigating. These prejudicial documents that made the decision of Kevin Patrick O'Connor void ab initio for being ultra vires were still in the Registry of the Federal Court. Only Russell Mathews was drawing attention to them. Had he been silenced, by being murdered, there would have been no reason to worry about them. Anyway, those documents were destroyed in a clandestine move. That is a major crime with linkages to not only Graham Ramsay, the them Deputy Registrar of the Queensland Registry of the Federal Court of Australia, in Brisbane, but also Federal Court Judge Jeffrey Spender, Chief District Court Judge Patsy Mary Wolfe, and her close personal Friend Quentin Alice Louise Bryce, currently swanning around the world as Governor-General of Australia [the Rudd Government who appointed her, clearly did not want another Kerr type episode so had to choose "carefully"], both catholic who were together lecturers in the Law School at The University of Queensland.

Because as a barrister, Patsy Mary Wolfe had Advocates' Immunity, she cannot be sued by Russell Mathews for her wrong doing. However, we suggest that her prior performance as indicated here and elsewhere on this website, means that she is likely to be biased against Russell Mathews. On 15th June, 2012, CDCJ Wolfe appeared at an interlocutory Hearing regarding Russell Mathews and made decisions adverse to Russell Mathews and refused to disqualify herself for perceived bias. CDCJ Wolfe appeared absolutely rattled, no doubt cognizant of her approaching doom.
http://HaigReport.com/includedSeeTodaysHotTopics.php

See: Today's HAIG HOT_TOPICS => Click HERE <=

Definition: Due Process

Watch this space.
Here it was all the time: See definition on another of our websites:

Definition: Natural Justice

Watch this space, TOO!

Here it was all the time: See definition on another of our websites:

http://HaigReport.com/includedSeeTodaysHotTopics.php

See: Today's HAIG HOT_TOPICS => Click HERE <=

Definition: Procedural Fairness

WATCH THIS SPACE TOO!
Here it was all the time: See definition on another of our websites:

Definition: Common Purpose

Common Purpose [in criminal law] See http://AustralianPublicSectorAnti-CorruptionConference2009FraudRortSin.info/ProofofCorruptionintheIndependentCommissionAgainstCorruptionNSW.php#Common_Purpose

Common Purpose [in criminal law] See http://AustralianPublicSectorAnti-CorruptionConference2009FraudRortSin.info/ProofofCorruptionintheIndependentCommissionAgainstCorruptionNSW.php#Common_Purpose

http://HaigReport.com/includedSeeTodaysHotTopics.php

See: Today's HAIG HOT_TOPICS => Click HERE <=

DefinitionVoidable

voidable:

In law, a transaction, contract or conduct which is voidable is valid, but may be annulled by one of the parties to the transaction. Voidable is usually used in distinction to void ab initio (or void from the beginning) and hence always already unenforceable.

Black's Law Dictionary (relevant to US law) defines voidable thus:

“ Voidable. That which may be avoided, or declared void; not absolutely void, or void in itself. It imports a valid act which may be avoided rather than an invalid act which may be ratified. United States v Price, D.C. Iowa, 514 F.Supp. 477,480

DefinitionVoidAbInitio

void ab initio:

Black's Law Dictionary defines "void" as:

Void. Null; invalid; ineffectual; nugatory; having no legal force or binding effect; unable, in law, to support the purpose for which it was intended.

Black's Law Dictionary continues to define

Void ab initio. A contract is null from the outset if it seriously offends law or public policy, in contrast to a contract which is merely voidable at the election of one of the parties to the contract.

DefinitionUltraVires

Ultra vires:

is a latin term meaning 'beyond power'. Any resulting conduct is termed invalid; and/or void ab initio /.

Raised On The Evidence:

20131208DefinitionsRaisedOnTheEvidenceEvidentialBurden This legal concept in Australia is termed "Raised on the Evidence" and in the US as "meeting the Evidential Burden". It means "properly put before the court".

Judges in Australia have spoken of "Raised on the Evidence" when referring to this concept. For a Google search of the term, in quotes "Raised on the Evidence", the only legal pages produced on the first page are Australian. [This suggests that "Raised on the Evidence" is a particularly Australian Legal Term.] =>

Search Results

~~[PDF]~~
61B Direction where defence not raised

www.courts.qld.gov.au/__.../sd-bb-61b-defence-not-raised-by-counse-b...‎
Benchbook – 61B – Defence where a Defence Not Raised. Feb 2010 Amendments. No 61B. Direction where a defence is not raised by counsel but raised.

The full proforma Direction to a jury is: [This is a direction to judges by the "authorities". What does this say - just read it - about the abilities of judges?]

Direction where a defence is not raised by counsel but raised on the evidence.
______________________________________________________________
I wish to say something to you about a further possible defence that arises for your consideration. It concerns the defence of [provocation etc]. It is my duty to direct with all possible defences which arise and therefore need to be considered by you in reaching your verdict, even where they are not raised by defence counsel. And the fact that I am mentioning this matter does not mean I have some particular view about it.

It is for you to consider this additional matter, as with all matters. (You will not need to consider it, should you find the defendant not guilty on the basis that the prosecution had not excluded [eg self defence] beyond a reasonable doubt).

~~[RTF]~~
A Judge's viewpoint: the role of pleading - Federal Court of Australia

www.fedcourt.gov.au/publications/judges...rares/Rares-J-20120616.rtf‎
The question is not the loose one whether the argument could possibly be raised on the evidence at the conclusion of a hearing but whether the issue has been ...
~~[PDF]~~
APPELLANT'S REPLY - High Court of Australia

www.hcourt.gov.au/assets/cases/m102-2013/James_App_Reply.pdf‎
Oct 25, 2013 - defence fairly raised on the evidence' do not (or should not) apply to deciding whether to direct on lesser alternatives verdicts; and o fourthly ...
~~[PDF]~~
Written submissions - High Court of Australia

www.hcourt.gov.au/assets/cases/m102-2013/james_res.pdf‎
Oct 11, 2013 - on the part of a trial judge to leave any defence fairly raised on the evidence irrespective of the wishes of the parties, that principle has hitherto ...
~~[DOC]~~
R v JONES 2

www.courts.sa.gov.au/Judgments/Lists/.../2013%20SADC%20108.docx‎
Jul 4, 2013 - That leads to a discussion about her ingestion of ecstasy and one of the possibilities raised on the evidence, having regard to the fact that the ...
~~[DOC]~~
AM_LAWS2114_2011_N.docx

uqls.com/wp-content/uploads/2012/01/AM_LAWS2114_2011_N.docx‎
Accused must not raise contradictory defences (because makes argument inconsistent), but if raised on the evidence, prosecution must negative (Stingel).
~~[DOC]~~
JD_LAWS2114_2012_N.docx - University of Queensland Law Society

uqls.com/wp-content/uploads/2012/01/JD_LAWS2114_2012_N.docx‎
The prosecution does not need to disprove every possible defence only the ones that are raised on the evidence. However, it is up to the judge to figure out ...
O'Dowd v Repatriation Commission - Practice Note

www.vrb.gov.au/practice_note/2013/04.htm‎
Nov 13, 2013 - ... fair reading of the Tribunal's reasons show that it discharged its obligation to consider alternative diagnoses raised on the evidence before it.
~~[PDF]~~
Mental Health and the Law, by Craig Smith (2013) (PDF, 75KB)

www.publicdefenders.lawlink.nsw.gov.au/.../mental%20health%20paper....‎
defence has been raised on the evidence the trial judge will have a duty to leave the defence although the matter was not raised by the accused. Ayoub (1984) ...
~~[PDF]~~
Psychiatric Defences and experts giving evidence - Learned Friends ...

learnedfriends.com.au/.../Yehia_Psychiatric_Defences_and_Experts_givi...‎
Where the defence has been raised on the evidence, the trial judge will have a duty to leave the defence although the matter was not raised by the accused: ...

The Wikipedia website describes this concept effectively as meeting the "evidential burden". "Evidential Burden" is defined at Wikipedia, as =>

Evidential burden is the obligation to produce evidence to properly raise an issue at trial. Failure to satisfy the evidential burden means that an issue cannot be raised at a court of law.

and additionally as =>

Evidential burden has been described as the obligation "to show, if called upon to do so, that there is sufficient evidence to raise an issue as to the existence or non-existence of a fact in issue, due regard being had to the standard of proof demanded of the party under such obligation".^[1]

Lord Bingham said that evidential burden is not a burden of proof, but rather a burden of raising an issue as to the matter in question fit for consideration by the tribunal of fact. In the criminal law context, if an issue is properly raised, it is for the prosecutor to prove, beyond reasonable doubt, that that issue does not avail the defendant.^[2]

Evidential burden can rest on either party, although it usually relates to matters of defence raised by the accused. Some defences impose an evidential burden on the defendant which, if met, imposes a legal burden on the prosecution. For example, if a person charged with murder pleads self-defense, the defendant must satisfy the evidential burden that there are some evidence suggesting self-defence. The legal burden will then fall on the prosecution to prove beyond reasonable doubt that the defendant was not acting in self-defence.^[3]

The satisfaction of the evidential burden has sometimes been described as "shifting the burden of proof", a label which has been criticized because the burden placed on a defendant is not the legal burden of proof resting on the prosecution.^[4]

To satisfy the burden, there must be evidence which both supported the issue and which is sufficiently substantial to raise a reasonable doubt as to the accused’s guilt.^[5] Whether the burden is satisfied is a matter for the judge.

With the footnotes:References

Tapper, Collin (2010). Cross & Tapper on Evidence (11 ed.). Oxford University Press. p. 132. ISBN 978-0-19-929200-4.
Sheldrake v DPP [2004] UKHL 43, [2005] 1 AC 264, [2005] 1 All ER 237, [2004] 3 WLR 976 (14 October 2004), House of Lords
Herring, J. (2004). Criminal Law: Text, Cases, and Materials. Oxford: Oxford University Press. pp. 58–64. ISBN 0-19-876578-9.
Jackson, Michael (2003). Criminal Law in Hong Kong. Hong Kong: Hong Kong University Press. pp. 41–42. ISBN 962-209-558-5.
"Bribery, Corruption and Organised Crime". Hong Kong Lawyer. May 2010. Retrieved 6 September 2010.

Evidential Burden:

Search Results

~~[PDF]~~
61B Direction where defence not raised

www.courts.qld.gov.au/__.../sd-bb-61b-defence-not-raised-by-counse-b...‎
Benchbook – 61B – Defence where a Defence Not Raised. Feb 2010 Amendments. No 61B. Direction where a defence is not raised by counsel but raised.

The full proforma Direction to a jury is: [This is a direction to judges by the "authorities". What does this say - just read it - about the abilities of judges?]

~~[RTF]~~
A Judge's viewpoint: the role of pleading - Federal Court of Australia

www.fedcourt.gov.au/publications/judges...rares/Rares-J-20120616.rtf‎
The question is not the loose one whether the argument could possibly be raised on the evidence at the conclusion of a hearing but whether the issue has been ...
~~[PDF]~~
APPELLANT'S REPLY - High Court of Australia

www.hcourt.gov.au/assets/cases/m102-2013/James_App_Reply.pdf‎
Oct 25, 2013 - defence fairly raised on the evidence' do not (or should not) apply to deciding whether to direct on lesser alternatives verdicts; and o fourthly ...
~~[PDF]~~
Written submissions - High Court of Australia

www.hcourt.gov.au/assets/cases/m102-2013/james_res.pdf‎
Oct 11, 2013 - on the part of a trial judge to leave any defence fairly raised on the evidence irrespective of the wishes of the parties, that principle has hitherto ...
~~[DOC]~~
R v JONES 2

www.courts.sa.gov.au/Judgments/Lists/.../2013%20SADC%20108.docx‎
Jul 4, 2013 - That leads to a discussion about her ingestion of ecstasy and one of the possibilities raised on the evidence, having regard to the fact that the ...
~~[DOC]~~
AM_LAWS2114_2011_N.docx

uqls.com/wp-content/uploads/2012/01/AM_LAWS2114_2011_N.docx‎
Accused must not raise contradictory defences (because makes argument inconsistent), but if raised on the evidence, prosecution must negative (Stingel).
~~[DOC]~~
JD_LAWS2114_2012_N.docx - University of Queensland Law Society

uqls.com/wp-content/uploads/2012/01/JD_LAWS2114_2012_N.docx‎
The prosecution does not need to disprove every possible defence only the ones that are raised on the evidence. However, it is up to the judge to figure out ...
O'Dowd v Repatriation Commission - Practice Note

www.vrb.gov.au/practice_note/2013/04.htm‎
Nov 13, 2013 - ... fair reading of the Tribunal's reasons show that it discharged its obligation to consider alternative diagnoses raised on the evidence before it.
~~[PDF]~~
Mental Health and the Law, by Craig Smith (2013) (PDF, 75KB)

www.publicdefenders.lawlink.nsw.gov.au/.../mental%20health%20paper....‎
defence has been raised on the evidence the trial judge will have a duty to leave the defence although the matter was not raised by the accused. Ayoub (1984) ...
~~[PDF]~~
Psychiatric Defences and experts giving evidence - Learned Friends ...

learnedfriends.com.au/.../Yehia_Psychiatric_Defences_and_Experts_givi...‎
Where the defence has been raised on the evidence, the trial judge will have a duty to leave the defence although the matter was not raised by the accused: ...

The Wikipedia website describes this concept effectively as meeting the "evidential burden". "Evidential Burden" is defined at Wikipedia, as =>

Evidential burden is the obligation to produce evidence to properly raise an issue at trial. Failure to satisfy the evidential burden means that an issue cannot be raised at a court of law.

and additionally as =>

With the footnotes:References

Tapper, Collin (2010). Cross & Tapper on Evidence (11 ed.). Oxford University Press. p. 132. ISBN 978-0-19-929200-4.
Sheldrake v DPP [2004] UKHL 43, [2005] 1 AC 264, [2005] 1 All ER 237, [2004] 3 WLR 976 (14 October 2004), House of Lords
Herring, J. (2004). Criminal Law: Text, Cases, and Materials. Oxford: Oxford University Press. pp. 58–64. ISBN 0-19-876578-9.
Jackson, Michael (2003). Criminal Law in Hong Kong. Hong Kong: Hong Kong University Press. pp. 41–42. ISBN 962-209-558-5.
"Bribery, Corruption and Organised Crime". Hong Kong Lawyer. May 2010. Retrieved 6 September 2010.

http://HaigReport.com/includedSeeTodaysHotTopics.php

See: Today's HAIG HOT_TOPICS => Click HERE <=

PHPincludes/Onus of Proof includeddefinitionsregardingthelegalprocessOnusOfProof.php

Onus of Proof; aka Burden of Proof

related topics: Quantum of Proof; Standard of Proof

We could write a thesis on this topic and leave most relevant comment unsaid. However, we will attempt to distill the essence of this aspect of evidence and persuasion of the existence of a certain fact or facts to satisfy an interested layperson.

Although 'Burden' and 'Standard' are different aspects of the same general topic, these are often referenced simply as the 'Onus of Proof'.

These topics are related to which party, in a legal dispute, both criminal and civil, and the extent of 'persuasion' that must be established in relation to a factual situation of evidence.

The 'Onus' or 'Burden' is directed at determining which party to a legal dispute, is required to 'prove' a certain fact. In criminal prosecutions, it is universally mandated that the prosecution must prove the fact. In a minority of cases, the defendant may be required to prove a particular fact, in which case he bears the burden or Onus of proof f the fact.

The 'Quantum' or 'Standard' of Proof, is a more interesting aspect. This relates to the degree of persuasiveness of particular evidence as related to proving a particular fact.

The 'criminal Quantum of proof', is 'beyond reasonable doubt'. This is much stricter than the 'civil Quantum of Proof' of 'on the 'balance of probabilities' or 50% ie 'more likely than not'.

Clearly, when considering evidence, readers may conceive of other degrees of persuasiveness of evidence. For instance, how persuasive does evidence have to be to merely raise a 'reasonable doubt'.

It is submitted that because of the protective nature of the Fiduciary Duty, a Fiduciary must not accept the risk if it is even just merely 'raised on the evidence'.

The judicial explanation of what constitutes the 'criminal Quantum of proof' of 'beyond reasonable doubt', is typical of lawyer double talk.

It is a nebulous concept. In fact, it has been held by appeal courts, that the lower criminal court is in error to fully explain the concept of 'beyond reasonable doubt', because no one would ever be convicted. Instead, 'beyond reasonable doubt' is 'explained' to jurors, by not explaining it but leaving it to, in effect, "what you 'feel' it to be".

This is a major imperfection to our judicial process, and, importantly, leaves an opening for the development of corruption. Consideration of an alternative is another huge debate. There are alternatives, which relate to better transparency, easier publication, and less legal obfuscation.
http://HaigReport.com/includedSeeTodaysHotTopics.php

See: Today's HAIG HOT_TOPICS => Click HERE <=

includedSpecia NeedsCertificates.php
Special Needs Certificates:

See Procedure & Details for supplying Special Needs Certificates:

Disabled people often have disabilities which are not obvious. Disabled people often have Special Needs in order to alleviate the effects of their disability. When a disabled person having particular special needs, is not readily perceived as disabled, then they can have very substantial problems with other people discriminating against them by not permitting them their Special Needs.

This causes problems for both the disabled person discriminated against, obviously, but also for the discriminator as it is illegal in all of Australia, to discriminate against disabled persons. Because disabled person are entitled to this but invariably suffer repeated episodes of this type of discrimination, they become litigious. Litigation causes both parties distress.

I am disabled with multiple disabilities. Through no fault of my own I have brain damage. Because of this, I have had to make adjustments and adaptations to alleviate the effects of my disabilities. Although I am entitled to welfare, I do not receive any. I do not need any gifts to survive and prosper. All I do need is to be not denied my special needs. I have one special need and that is to be accompanied by my assistance dogs. Bureaucrats deny me my right on public transport. This means I cannot travel where I cannot walk. Another special need I have, is to present argument or comment in writing, rather than verbally in person or by phone, as due to the brain damage I have suffered, my concentration ability varies. In the Internet age, that 'presentation in writing' means EMAIL. Although I have had specific medical evidence fully justifying these, they have been denied to me by public sector parasites and government tribunals, to my great detriment. I am sure I am not alone, and that what I have had to face is what other disabled people face on a daily basis, and that the bureaucrats have been encouraged to continue by success in the past. This needs to be addressed from the Australian Parliament. I have all the evidence.

I have announced my intention to run at the next Australian Federal Election for election as an Independent Senator for Queensland in the Australian Senate. One central plank in my platform is to issue Special Needs Certificates to all disabled persons in AUSTRALIA, who have special needs, if I am elected as a Senator for Queensland in the Senate of national Australian Federal Parliament. In fact, regardless of whether a person is admitted to be disabled by any government bureaucrat, if that person does have Special Needs, and can supply me, when elected, with the requisite evidence as I detail in http://AustLawPublish.com/20070716AustralianDisabilityLawJournalissue200701.pdf , I will still provide that Special Needs Certificate. The full appropriate procedure is detailed at http://AustLawPublish.com/20070716AustralianDisabilityLawJournalissue200701.pdf /. These will be issued largely using our computer systems. We will have procedure in place to guard against fraud by non-deserving individuals. However, because I am disabled with Special Needs myself, I guarantee that I will be most understanding. While I do not pretend that my Special Needs Certificates will have mandatory legal effect, they will be nationally recognized for being strong evidence that the bearer has those specific Special Needs mentioned on the Certificate. Any potential discriminator would be extremely foolish to ignore it.

http://HaigReport.com/includedSeeTodaysHotTopics.php

See: Today's HAIG HOT_TOPICS => Click HERE <=

includeddefinitionsregardingthelegalprocessBeneficialOwnership.php Beneficial Ownership:

Many texts and research thesis have been written on this topic. Internet readers want a quick thumbnail explanation rather than a mere definition. 'Beneficial Ownership' or 'Equitable Interest' is a central topic in the branch of 'English' Common Law known as Equity Law or Trusts. It is to be compared with 'Legal title' or 'Legal Ownership'. 'Beneficial Ownership' and 'Legal Ownership' are usually combined, and, in the absence of evidence to the contrary, can be assumed to be combined..

In 'English' Common Law, one legal person, called the Trustee can 'own' property for the benefit of another called the beneficiary. This arrangement is termed a TRUST, and the trustee owes the beneficiary a FIDUCIARY DUTY.

Beneficial Ownership is one form of 'Equitable Interest'. It is not legally necessary generally, for the existence of the beneficial ownership to be published.

The identity of the trustee can change such that a new trustee accepts the responsibility of having the fiduciary duty owed to the beneficial owner. The beneficiary or beneficial owner may be infirm, suffering dementia, or for some other reason may not have 'legal capacity'. If the beneficial owner is of sound mind and does have legal capacity, then that beneficial owner can require the legal title to be transferred to the beneficiary at any time. It is a beach of his fiduciary duty for the trustee to refuse.

Beneficial ownership can be extinguished If the trustee sells it and a purchaser buys it for full value without notice of the equitable interest, the beneficial interest is extinguished, and the purchaser has good title to the legal and beneficial ownership of the property. The beneficiary would have a claim against the trustee for the loss of the property, as that sale was a breach of the trustee's fiduciary duty.

http://HaigReport.com/includedSeeTodaysHotTopics.php

See: Today's HAIG HOT_TOPICS => Click HERE <=

PHPincludes/caucusing

caucusing

'caucusing' in a legal sense in reference to an adversorial 'judicial hearing', refers to the practice of the decision maker discussing the matter about which s/he is to make a decision with one party to the exclusion of the other adversorial party. It matters not whether the private discussion is secret or disclosed.

This is within a branch of Administrative Law called Natural Justice aka Due Process aka Procedural Fairness.

'caucusing' is a Denial of Natural Justice.

If the caucusing involves the viewing of documents by the decision maker, then the 'decision' is a Nullity aka void ab initio. That means that the decision cannot under any circumstance be upheld, and has always been a Nullity.

If the caucusing involves only verbal discussion, then the decision is voidable on appeal, but until such time as it is voided, it is a valid decision.

In Australia, caucusing is regularly employed, as circa 1990, in Brisbane, by corrupt political public servants, such as John Joseph Armstrong 'employed' in the then named Human Rights and Equal Opportunity Commission [hreoc], now renamed the Australian Human Rights Commission [ahrc], and corrupt Administrative decision maker named Kevin Patrick O'Connor, then a decision maker in the then named Human Rights and Equal Opportunity Commission [hreoc], now renamed the Australian Human Rights Commission [ahrc], nominally, he was called the 'Privacy Commissioner' but was really just a dumb criminal. This corrupt parasite has been named by New South Wales corrupt labor government as President, of the New South Wales Administrative Decisions Tribunal and given the 'accolade' by a corrupt Australian Federal government of AM.

Others corrupt individuals scurrilously were involved in this episode of corruption by many public sector parasites, labor lawyers and judges appointed by labor including Federal Court judge Jeffrey Ernest John Spender.

http://HaigReport.com/includedSeeTodaysHotTopics.php

See: Today's HAIG HOT_TOPICS => Click HERE <=

PHPincludes/Wasted Costs Order

Wasted Costs Order [WCO]:

is an order of a court that the plaintiff should pay the defendant's legal costs that were wasted by the legal proceeding initiated for an ulterior purpose other than the purpose of winning the legal point.

The best way to express the nature of a WCO is to quote the findings of the case where one was found. The court costs in a proceeding usually follow the case: the loser pays the costs of the winner. A WCO can be ordered by that court, where one party has caused another party to expend resources needlessly, to defend an action initiated without any, or much, prospect of success, but merely, for instance, to defame the defending party so that they are forced to fight to clear their name. The improper purpose of the plaintiff can be to merely buy time and to put the other party on the defensive and so at a disadvantage when suing the plaintiff.

See the investigative assessment of the reason it happened in this particular case where a WCO was ordered by the court:

CABOOLTURE PARK SHOPPING CENTRE PTY LTD (IN LIQUIDATION) and WHITE INDUSTRIES (QLD) PTY LTD v. FLOWER AND HART (A FIRM) Nos. QG198 of 1986 and QG174 of 1992 FED No. 667 Courts - Practice and Procedure (1993) 117 ALR 253

http://HaigReport.com/includedSeeTodaysHotTopics.php

See: Today's HAIG HOT_TOPICS => Click HERE <=

includeddefinitionsregardingthelegalprocessVoirDire.php

Voir dire

In the court environment in Australia, the term void dire is used as a general term to mean, a "trial withing a trial". As disclosed below with quotes from respected [except the CDPP of course], websites, voir dire has many uses in different jurisdictions around the world. These basically derive their meanings from usage, with minor changes across jurisdictions.

From Wikipedia:"Voir dire

From Wikipedia, the free encyclopedia
Jump to: navigation, search

Voir dire (English pronunciation: /vwar dear/) is a phrase in law which comes from the Anglo-Norman language. In origin it refers to an oath to tell the truth (Latin verum dicere), i.e., to say what is true, what is objectively accurate or subjectively honest in content, or both.

The word voir (or voire), in this combination, comes from Old French and derives from Latin verum, "that which is true". It is not related to the modern French word voir, which derives from Latin vidēre ("to see"), though the expression is now often interpreted by false etymology to mean "to see [them] say."

    * 1 Use in Commonwealth countries
    * 2 Use in the United States of America

Use in Commonwealth countries

In the United Kingdom, Australia, New Zealand, and Canada (as sometimes in the United States of America) it refers to a "trial within a trial." It is a hearing to determine the admissibility of evidence, or the competency of a witness or juror.[1] As the subject matter of the voir dire often relates to evidence, competence or other matters that may lead to bias on behalf of the jury, the jury is removed from the court for the voir dire.

The term has thus been broadened in Australian jurisdictions to include any hearing during a trial where the jury is removed. The High Court of Australia has noted that the voir dire is an appropriate forum for the trial judge to reprimand counsel or for counsel to make submissions as to the running of the court to the trial judge.[2]

Use in the United States of America

In the United States, it now generally refers to the process by which prospective jurors are questioned about their backgrounds and potential biases before being chosen to sit on a jury. It also refers to the process by which expert witnesses are questioned about their backgrounds and qualifications, in order to potentially give an expert opinion in court testimony. As defined by Gordon P. Cleary: "Voir Dire is the process by which attorneys select, or perhaps more appropriately reject, certain jurors to hear a case."[3] As noted above, in the United States (especially in practice under the Federal Rules of Evidence), voir dire can also refer to examination of the background of a witness to assess their qualification or fitness to give testimony on a given subject.[4]

References

   1. ^ Lloyd Duhaime: Legal Dictionary
   2. ^ See the High Court of Australia's judgement in Jago v The District Court of NSW &ors. [1989] HCA 46.
   3. ^ Cleary, Gordon P. (2007). Trial Evidence Foundations. James Publishing. Section 201.
   4. ^ Christopher B. Mueller, Laird C. Kirkpatrick. Evidence (4th ed., 2009). Aspen Treatise Series. ISBN: 9780735579675. §§6.2, 6.59, 7.14

Australia's Commonwealth DPP gives the restrictive definition viz:
Voir dire
Legal argument about the admissibility of a particular piece of evidence in court. The witness and the jury are sent out of court while this argument takes place.

includedQualifiedPrivilege.php

Qualified Privilege:

Watch for this, coming soon! Well here it is. It is a little long, but horray for Qualified Privilege: Something for the Good people of the World.
includedTextQualifiedPrivilege.php

"Definition" Qualified Privilege
"Qualified Privilege" is a particularly important subject to HaigReport.com /. We are a publication, produced by Journalists/Reporters..

We have so much to write/cover, so that for "Qualified Privilege", we will provide here a brief summary of content we have abstracted from the Internet. That material with citation of URL, appears below.

For my definition of "Qualified Privilege", I have abstracted and summarized to some extent information I have retrieved from Internet sources I trust.

We will include this content on both our Definitiion regarding the legal Process, and in our New Section called "Qualified Privilege".

We will mention here just a few relevant points we have been able to extract:

Qualified Privilege, was originally a Common Law defence, but is now incorporated in some legislation in some jurisdictions. It is still a Common law defence in most Common Law Jurisdictions, including Australia..
Qualified Privilege is a special legal right or immunity granted to a person or persons. Qualified privilege is an immunity from lawsuit, usually a lawsuit for defamation, but not only defamation. We believe this would included criminal law suits, where mis-use of a Carriage Service ie Broadband is alleged.

Because, we have become aware of endemic corruption in Queensland because of what has been done to Russell Mathews, we are happy to publicize other criminal acts by this Queensland Government, where those criminal acts have been perpetrated against others. We mention here the crimes committed against our friend in Cairns, North Queensland, Jim Tierney.. We intend to see the end of widespread Government Crime in Queensland.

Of course, as has been often mentioned in these abstracts, an important aspect is the preparedness of the publisher to publish any explanation or excuses by any person mentioned adversely on our pages. Accordingly, any person who feels they have been adversely mentioned on our pages, we are prepared to publish any explanation or excuse from any person mentioned adversely on our pages. Write via our PHP Contact form.

Qualified Privilege is available to journalists and publishers.
Qualified Privilege availability is responsive to the gravity of the subject matter such that it is in the "Public Interest" These subjects include:
(1) exposing crime
(2) exposing health risk to the community

(3) exposing lying and hypocrisy in public life
Qualified Privilege, is related to "Freedom of Speech" for political, government.and election matters Hence comment of a "government or political" character, is partilcularly protected.

Hence, for the case of Russell Mathews, where the Queensland [and now Commonwealth of Australia] government has been involved in the Crime of Armed Robbery, and since many sections of the Government and Public Sector has engaged in lying and hypocrisy to conceal the government crimes, then plainly the Queensland Police [who were engaged in the Armed Robbery and the repeated acts to attemptto cover it up], were plainly hypocritical at least, .in arresting and charging Russell Mathews with allegedly committing Crimes.

Defamation Act 1996

www.legislation.gov.uk/ukpga/1996/31/contents
There are outstanding changes not yet made by the legislation.gov.uk editorial team to Defamation Act 1996. Those changes will be listed when you open the ...
The Defamation Act 1996 (Commencement No. 4) Order 2009

www.legislation.gov.uk/uksi/2009/2858/contents/made
This Order brings into force on 6th January 2010 all the provisions of the Defamation Act 1996 which apply in Northern Ireland and which have not so far been ...

Qualified Privilege -

journalism.winchester.ac.uk › ... › Teaching Materials › Media Law Web

QUALIFIED PRIVILEGE (QP) - AN IMPORTANT DEFENCE AGAINST LIBEL ACTIONS. libel and qualified provilege, media law. These are rough lecture notes ...

You visited this page on 2/21/12.

http://en.wikipedia.org/wiki/Qualified_privilege

Qualified privilege

From Wikipedia, the free encyclopedia

The defense of qualified privilege permits persons in positions of authority or trust to make statements or relay or report statements that would be considered slander and libel if made by anyone else. In New Zealand and Ontario, for instance, cases of political libel are inhibited by permitting open discussion of an allegation or rumour, if conducted responsibly and with due care for the privacy of the person whose reputation would be affected. This privilege generally doesn't extend to repetition of discredited statements, malice, or comments made out of process or out of order in the organization or institution in which the position of authority is held.

The defense has become very important in the UK, especially after a case involving allegations made by the Sunday Times against the Irish Taoiseach Albert Reynolds. During that case the judge outlined a ten point test of 'responsible journalism'. If reporters and editors followed these points, the judge said, they would enjoy a degree of protection from libel action, even if they could not prove factual allegations.

To qualify for this defence, a report must be one of a public meeting/press conference that's:

Fair

Accurate

Published without malice

Subject to the right of reply in the form of a letter that gives explanation or contradiction

It need not be contemporaneous (depending on publication), where it has to be for absolute privilege

http://www.yourrights.org.uk/yourrights/right-of-free-expression/defamation/qualified-privilege.html

Switch to the Normal Style SheetSwitch to the Dyslexia Style SheetSwitch to the High Visibility Style Sheet

Your RightsLiberty

Home

Voluntary Sector

News

FAQs

Get Advice

Qualified Privilege

Defamation - Elements of a Claim

Suing for Defamation

Defences to a Claim of Defamation

Qualified Privilege

Malice

Offer of Amends

Remedies

Other Claims - Malicious Falsehood, Harassment, Negligence

Defamation

Right of Free Expression

Your Rights

The Human Rights Act

The Right to Privacy

The Right To Know

The Rights of Suspects

The Rights of Defendants

The Rights of Prisoners

The Rights of Victims and Witnesses

The Right of Peaceful Protest

The Right of Free Expression

The Right to Receive Equal Treatment

The Rights of Immigrants and Asylum Seekers

The Rights of Gypsies and Travellers

The Rights of Workers

The Rights of Children and Young People

The Rights of the Bereaved

How To Enforce Your Rights

Home > yourrights > right of free expression/defamation > defamation > Qualified Privilege

Qualified Privilege

Qualified Privilege Under the Defamation Act 1996

Qualified privilege provides a conditional defence. If a statement published on an occasion of qualified privilege is published maliciously, then the defence will fail.

The Defamation Act 1996 provides a statutory qualified privilege for material that is of public concern and for the public benefit. The Defamation Act 1996 distinguishes between statements that attract qualified privilege without explanation or contradiction and those that are privileged subject to explanation or contradiction.

Statements that qualify for qualified privilege without explanation or contradiction are as follows:

Fair and accurate reports of public proceedings of legislatures, courts, government appointed public inquiries, international organisations/conferences anywhere in the world.

A fair and accurate copy of or extract from any register or other document required by law to be open to public inspection.

A notice or advertisement published by or on the authority of a court, or of a judge or officer of a court, anywhere in the world.

A fair and accurate copy of or extract from matter published by or on the authority of a government or legislature or by an international organisation or an international conference anywhere in the world.

T he defence of qualified privilege will be lost if the claimant shows that he or she requested the defendant to publish a reasonable letter or statement by way of explanation or contradiction and the defendant refused or neglected to do so in relation to the following reports and statements:

A fair and accurate copy of or extract from a notice or other matter issued for the information of the public by or on behalf of:

a legislature in any Member State or the European Parliament.

the Government (or any authority performing governmental functions) of any Member State or the European Commission.

an international organisation or international conference

A fair and accurate copy of or extract from a document made available by a court in any member State or the European Court of Justice, or by a judge or officer of any such court.

A fair and accurate report of proceedings at any public meeting or sitting in the United Kingdom of:

• a local authority or local authority committee.

• justices of the peace acting otherwise than as a court exercising judicial authority.

• a commission, tribunal, committee or person appointed for the purposes of any inquiry by any statutory provision, by Her Majesty or by a Minister of the Crown or a Northern Ireland department.

• a person appointed by a local authority to hold a local inquiry in pursuance of any statutory provision.

• any other tribunal, board, committee or body constituted by or under, and exercising functions under, any statutory provision.

A fair and accurate report of proceedings at any public meeting held in a Member State.

A meeting is public if those who organise it open it to the public or, by issuing a general invitation to the press, manifest an intention or desire that the proceedings of the meeting should be communicated to a wider public. This would usually include most press conferences.

Qualified Privilege at Common Law

Complaints or information passed under a public or private legal, social or moral duty to another individual with a duty to receive (including the relevant authorities), are protected by common law qualified privilege. Examples include replying to an inquiry for an employment reference, or to inquiries about a crime, and statements volunteered about crime or about the conduct of candidates for public office.

The courts have been reluctant to extend the defence of qualified privilege to provide the media with a ‘public interest’ defence. However, in Reynolds v Times Newspapers Ltd, the House of Lords recognised the ‘high importance of freedom to impart and receive information and ideas’ and observed that the ‘press discharges vital functions as a bloodhound as well as a watchdog’. Their Lordships declined to develop political information as a new subject-matter category of qualified privilege. They did, however, state that ‘the court should be slow to conclude that a publication was not in the public interest, and therefore, the public had no right to know’ especially when the information was in the field of political discussion. The court was to take into account the following ten, non-exhaustive, matters:

The seriousness of the allegation.

The nature of the information, and the extent to which the subject-matter is a matter of public concern.

The source of the information.

The steps taken to verify the information.

The status of the information.

The urgency of the matter.

Whether comment was sought from the claimant.

Whether the article contained the gist of the claimant’s side of the story.

The tone of the article.

The circumstances of the publication, including the timing.

http://journalism.winchester.ac.uk/?page=228

"QUALIFIED PRIVILEGE (QP) - AN IMPORTANT DEFENCE AGAINST LIBEL ACTIONS"

libel and qualified privilege, media law

These are rough lecture notes and do not constitute legal advice. The lecture must be taken in conjunction with the directed reading and your own research and verification. Last updated in October 2009.

(1) In reporting court, parliament you have a QP defence automatically when repeat/publish/broadcast defamatory remarks

(2) QP requires immediate publication, no errors, no malice ('fast, accurate, fair') Malice can be lack of balance, so add "he denies the charges" and "the case continues".

(3) You never have AP as a journalist, though in practice if your report is free from error, and if it published immediately then the QP confers a similar degree of protection.

(4) You have QP at a range of other public events (eg local government meetings, pressure group meetings, AGMs of companies - section 12 of the 1996 act + Clegg + Human Rights Act, section 10) so long as you allow the defamed person to deny it in the same report - "subject to contradiction". (VITAL IMPORTANCE OF BALANCE)

(5) If you have ALL 10 POINTS of Reynolds Test, plus THE PUBLIC INTEREST - then you MAY have QP in making defamatory allegations outright, without quoting somebody protected by AP.

(A) STATUTES:

STATEMENTS HAVING QUALIFIED PRIVILEGE WITHOUT EXPLANATION OR CONTRADICTION (as set out in schedule I the 1996 Defamation Act)

1. A fair and accurate report of proceedings in public of a legislature anywhere in the world.

2. A fair and accurate report of proceedings in public before a court anywhere in the world.

3. A fair and accurate report of proceedings in public of a person appointed to hold a public inquiry by a government or legislature anywhere in the world.

4. A fair and accurate report of proceedings in public anywhere in the world of an international organisation or an international conference.

5. A fair and accurate copy of or extract from any register or other document required by law to be open to public inspection.

6. A notice or advertisement published by or on the authority of a court, or of a judge or officer of a court, anywhere in the world.

7. A fair and accurate copy of or extract from matter published by or on the authority of a government or legislature anywhere in the world.

8. A fair and accurate copy of or extract from matter published anywhere in the world by an international organisation or an international conference.

SCHEDULE II - STATEMENTS HAVING QUALIFIED PRIVILEGE IF THE OTHER SIDE OF THE STORY IS GIVEN ALONG SIDE THE DEFAMATORY ALLEGATION (as set out in schedule II of 1996 Defamation Act) ie "Statements privileged subject to explanation or contradiction".

9. - (1) A fair and accurate copy of or extract from a notice or other matter issued for the information of the public by or on behalf of-

(a) a legislature in any member State or the European Parliament;

(b) the government of any member State, or any authority performing governmental functions in any member State or part of a member State, or the European Commission;

(2) In this paragraph "governmental functions" includes police functions.

10. A fair and accurate copy of or extract from a document made available by a court in any member State or the European Court of Justice (or any court attached to that court), or by a judge or officer of any such court.

11. - (1) A fair and accurate report of proceedings at any public meeting or sitting in the United Kingdom of-

(a) a local authority or local authority committee;

(b) a justice or justices of the peace acting otherwise than as a court exercising judicial authority;

(c) a commission, tribunal, committee or person appointed for the purposes of any inquiry by any statutory provision, by Her Majesty or by a Minister of the Crown or a Northern Ireland Department;

(d) a person appointed by a local authority to hold a local inquiry in pursuance of any statutory provision;

(e) any other tribunal, board, committee or body constituted by or under, and exercising functions under, any statutory provision.

(all of these above are defined in the Act)

12. - (1) A fair and accurate report of proceedings at any public meeting held in a member State.

(2) In this paragraph a "public meeting" means a meeting bona fide and lawfully held for a lawful purpose and for the furtherance or discussion of a matter of public concern, whether admission to the meeting is general or restricted.

13. - (1) A fair and accurate report of proceedings at a general meeting of a UK public company.

(2) A fair and accurate copy of or extract from any document circulated to members of a UK public company-

(a) by or with the authority of the board of directors of the company,

(b) by the auditors of the company, or

(3) A fair and accurate copy of or extract from any document circulated to members of a UK public company which relates to the appointment, resignation, retirement or dismissal of directors of the company.

(5) A fair and accurate report of proceedings at any corresponding meeting of, or copy of or extract from any corresponding document circulated to members of, a public company formed under the law of any of the Channel Islands or the Isle of Man or of another member State.

14. A fair and accurate report of any finding or decision of any of the following descriptions of association, formed in the United Kingdom or another member State, or of any committee or governing body of such an association-

(a) an association formed for the purpose of promoting or encouraging the exercise of or interest in any art, science, religion or learning, and empowered by its constitution to exercise control over or adjudicate on matters of interest or concern to the association, or the actions or conduct of any person subject to such control or adjudication;

(b) an association formed for the purpose of promoting or safeguarding the interests of any trade, business, industry or profession, or of the persons carrying on or engaged in any trade, business, industry or profession, and empowered by its constitution to exercise control over or adjudicate upon matters connected with that trade, business, industry or profession, or the actions or conduct of those persons;

(c) an association formed for the purpose of promoting or safeguarding the interests of a game, sport or pastime to the playing or exercise of which members of the public are invited or admitted, and empowered by its constitution to exercise control over or adjudicate upon persons connected with or taking part in the game, sport or pastime;

(d) an association formed for the purpose of promoting charitable objects or other objects beneficial to the community and empowered by its constitution to exercise control over or to adjudicate on matters of interest or concern to the association, or the actions or conduct of any person subject to such control or adjudication.

15. - (1) A fair and accurate report of, or copy of or extract from, any adjudication, report, statement or notice issued by a body, officer or other person designated for the purposes of this paragraph-

(a) for England and Wales or Northern Ireland, by order of the Lord Chancellor, and

(b) for Scotland, by order of the Secretary of State.

(2) An order under this paragraph shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(B) QP IN COMMON LAW

ie, made up by judges, convention, etc, not by statue.

Qualified privilege in common law rests on the case of Toogood v Spyring (1834) 1 CM&R 181, 193, and onm the idea of "the common convenience and welfare of society", that is, the public interest.

The judge in case said: "The law considers such publication as malicious, unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in conduct of his own affairs, in matters where his interest is concerned. In such cases the occasion prevents the inference of malice, which draws from unauthorised communications, and affords a qualified defence depending on the absence of actual malice. 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."

The classic case of common law QP would be a lecturer writing a reference for a student. He would have a duty to tell the truth about teh student even if that truth were per se defamatory. But there would be the protection of QP so long as the reference was written without malice, and there had been steps taken to make sure that it was factually accurate. There are, in other words, various circumstances in civil life where people "have to" make defamatory statements, in fact have a duty to do so.

Another example is that a doctor might say to another doctor that a named patient had a certain disease. This is defamatory per se and might be slander (the defence would be 'justification' if not for QP). But it would be silly for somebody to sue doctors over their own written medical records, so the doctors would have a form of QP. (A journalist would not have a common law QP defence for printing medical records - because it is not in the public interest public interest). In either case the patient would be protected by confidentiality law anyway (that is a seperate subject which we will deal with in subsequent lecture). A doctor who said "I think you look like you have a disease" would have QP even if it turned out that the person did not have the disease.

This common law "duty" to say unwelcome things about people has been developed to extend statutory QP (1996 Act) to the discussion of various matters in the public domain. The common law has been bolstered by the general thrust of the Human Rights act, and for provisions of freedom of expression. Common Law QP has got stronger in recent years (balanced, as it happens, with the privacy provisions of the Human Rights Act - which we will deal with in a later lecture on privacy and confiendtiality.

COMMON LAW QP - THE CLEGG CASE

This was the first significant case where reference to the Human Rights Act was introduced. The result (the actual judgement) is here.

An easy description of the Clegg case and its circumstances can be found here on BBC news online.

What happened was that at a public meeting a group of anti-IRA activists in Northern Ireland it was claimed that a firm of solicitors (Mccartan Turkington Breen) were prosecuting a soldier (Clegg) who was accused of shooting innocent youths, in order to further the aims of the provisional IRA and that the lawyers were in effect ‘helping terrorism’ or were even (by innuendo) terrorist themselves.

When these allegations were reported the lawyers sued for libel. The law firm won £145,000 damages, but the papers appealed and the decision was overturned. On appeal (2000) the lawyers lost, and the papers won, because judges said it was in the public interest that these allegations were made and discussed, so long as the lawyers’ own denials were properly reported (ie the reports were balance, free from factual error, free form malice as with QP in reporting court cases and other events in the schedule of the 1996 defamation act).

There was a lot of interest in the case because:

(a) It was the first case in which the provisions for freedom of expression in the Human Rights acts were used to protect newspapers

(b) It seemed to extend the protection of QP from the courts, through official meetings like those set out in the 1996 defamation act, towards informal events like press conferences, public political meetings and (perhaps) even press releases about meetings like this.

In 2000 Lord Bingham, commenting on the Clegg case (SEE HERE) emphasised and strengthened the meaning of a “public meeting” which might be reported with a type of qualified privilege. Such a gathering is defined in the 1996 act in section 12 as:

(1) A fair and accurate report of proceedings at any public meeting held in a member

ALBERT REYNOLDS vs SUNDAY TIMES

The Sunday Times said that Irish Prime Minister Albert Reynolds lied to the Irish parliament in order to cover up a child abuse scandal in teh Catholic church. The paper said it believed the allegations were true, but when challenged by Reynolds they could not prove the allegations because (as often must be the case with corruption) there were no witnesses, and no forensic or documentary evidence. Mr Reynolds might have taken the view that all he had to do was deny the allegations and say “where’s your proof”, since in defamation the onus is on the journalist to prove the allegations.

But when the case came to the higher courts (1989), the judges thought the Sunday Times had not only a right, but a “duty” to publish the allegations, since they seemed to be reasonable and it was very much in the public interest that they be discussed. Underlying everything was the (then new) Human Rights Act with its new provision for freedom of expression. More generally, there is an American-type trend towards public officials enjoying less protection from defamation than strictly private citizens, at least in so far as allegations are made about the performance of their public duties.

(Ever since the 1993 Bookbinder/ Derbyshire County Council case, politicians have faced the risk of losing in libel actions, if the REPORTED allegations made against them (even if wrong or debatable) are accurately summarised, are purely about their public duties, and are reported without malice. But if the allegations are about private life, then they still have full protection (as in the John Major vs the New Statesman case. In the Major case the New Statesman said he had an affair and kept a mistress. John Major case here.

THE REYNOLDS CASE and the 10 POINT TEST

Lord Nicholls, the judge in the appeal stage of Albert Reynolds vs Sunday Times (1999), seemed to further define/extend QP-type protection against defamation, so long as the reporter was working without malice (as always with QP – you need lack of malice, accuracy and timeliness), had taken reasonable steps (not reckless) and so long as it was a matter of ‘public interest’ (ie not just a purely private matter).

Lord Nicholls said: ‘The press discharges vital functions as a bloodhound a well as a watchdog. The court should be slow to conclude that a publication was not in the public interest and, therefore, the public had no right to know especially when the information is in the field of political discussion. Any lingering doubts should be resolved in favour of publication.”

However Lord Nicholls emphasised a ‘duty to publish’ if the newspaper or a reporter thought he knew there was something seriously wrong (bloodhound as well as a watchdog).

His ten point test of responsible journalism is well worth dwelling on because it forms a curriculum really for journalism of the highest quality which (quiet rightly) should enjoy a degree of legal protection.

1. The seriousness of the allegation – the more serious the allegation, the more protection will be applied. Trivial allegations which are merely embarrassing would probably not enjoy the protection. Allegations about purely private matters would probably not enjoy protection.

2. The nature of the information and the extent to which the subject matter is a matter of public concern. This follows from schedules I or II of 1996 act - essentially anything related to matters that would be discussed in forums listed in schedule I (ie the discussion of politics, or the content and conduct of trials) would be protected and almost certainly matters that would come up in forums detailed in schedule II would also be covered. Again, allegations of a private nature are excluded (except in so far as they might impact on performance of public or official duties). NB Discussion of what goes on in companies would have more coverage if it is a floated public company with shareholders, or if it was significant in the economy as a whole.

3 . The source of the information. The more authoritative the source, the more you are entitled to report their allegations, even if those allegations can not be proved or even if they turn out to be (to your surprise) incorrect. The test is – “would they have a reason to lie to me?”. So obviously chequebook journalism (where people are paid to make allegations) is not very safe, and would have less protection than allegations made by a responsible person with no axe to grind, and with a reputation for honesty. Also persons with a direct view of event or direct access to information are more to be believed (and therefore your report of what they say more protected) than second hand sources. Sources ‘on the record’ are more protected than anonymous sources. Two sources (or more) saying the same thing independently would of course be much stronger than a single source.

4. The steps taken to verify the information. There must be a reasonable attempt in the time available (see below, point six urgency). The crucial thing is to try and put the allegations to the person being accused in order to get their side of the story. Obviously they will be evasive (especially if they have something to hide) and may give you the ‘run around’ in order to deny you protection under this very point in the ten point test. But you must either get to the person and make the allegation or, at the very least, be able to show a whole log of e-mails and phone calls where you make determined efforts to get their side of the story. A simple “they wouldn’t answer the phone” or “they were unavailable for comment” might not be good enough for this test (it was in fact where the daily Telegraph came unstuck in the Galloway case – see below).

5. The status of the information. You need to check that this is not an old allegation which has previously been denied. If the allegation had been previously dismissed by “an investigation which commands respect” then it would have no protection. For example if the allegation was about a doctor in a hospital. If the allegation had already been through some sort of internal enquiry at a hospital and had been dismissed, you may well lose your protection in repeating it, especially if you overlooked previous dismissal when you were trying to verify the information (see point 3 above – ‘steps taken to verify’).

6. The urgency of the matter. The judge recognised that news is “a perishable commodity” and that papers must compete to be first with the news. If the matter genuinely is urgent (eg to bring something like corruption to the attention of voters before polling day) then the other checks in the code might be less stringent and might still enjoy protection.

7. Whether comment was sought from the claimant – together with point 4 above and point 8 below, although the judge did say that putting allegations to the claimant was not necessary in every single case, if the case for protection on other counts was strong enough. As a practical point it is always wise to get the other side of the story and have them point out how or why the allegations might be untrue, then incorporate this in your report. Such a statement might also provide you with a ‘consent’ type defence to a libel action.

8. Whether the article contained the gist of the claimant’s side of the story (see above, points 4 and 7

9. The tone of the article. If the angle of a piece is along the lines of allegations of X have raised concerns… this would probably more protected than a straightforward assertion that the allegations are fact. It is always important to attribute the allegations to a named source (‘on the record’) if possible. If the source is not named there must be a genuine and obvious reason for this (eg they fear getting the sack, or being attacked). But with ‘protected sources’ and ‘off the record’ there is always the separate (and growing) legal danger of action for breach of confidence.

10. The circumstances of the publication, including the timing. The allegations should be brought to public attention as quickly as possible. They should not be ‘saved up’ for commercial motives by the paper or broadcaster. This is similar to the need to publish/broadcast quickly in ordinary QP of court and parliamentary reports.

THE LOUTCHANSKY CASE

In this case (which is also of interest because of the separate problem of ‘internet libel’ – ie each time an article is loaded from a newspaper online archive it constitutes a fresh instance of ‘publication’ and can thus activate a libel action) the judge worked his way methodically through all ten points of the Reynolds ‘responsible journalism’ test. It is very useful to follow his points.

THE GALLOWAY CASE (a Reynolds defence fails)

The Daily Telegraph attempted a Reynolds defence to an action from George Galloway after the paper made very serious defamatory allegations against him, for which there was no defence of JUSTIFICATION (true and can be proves) or COMMENT or QP in the sense that it was reporting ‘second hand’ what had been said in court. Instead the paper was quoting a source it said it trusted.

The Telegraph lost the case because the journalist failed the ’10 point test’ – in this case mainly because, despite a quick call to Galloway, the paper did not put all its allegations to Galloway for him to deny before they published the information.

If the reporter had shown Galloway all the ‘secret documents’ it had been given, and really given Galloway a chance to persuade the reporter they were not true, then there might not have been a legal action.

Commentary on the Galloway case and Lord Nicholls’ Ten Point Test

ANOTHER WORRYING REYNOLDS FAILURE –Mohammed Abdul Latif Jameel vs Wall Street Journal (Feb 2005)

The paper thought it had reasonable grounds for airing allegations from what it believed to be a good source that a certain Saudi Arabian businessman was involved in financing terrorism. The report could not prove the allegation, but believed that she had a Reynolds “duty” to report that the allegations were being taken seriously by various important and responsible people. But the allegations could not be proved, and therefore not defended with “justification” so she relied on a Reynolds defence. In her own view (and the view of many commentators) she though she had stayed within the 10 point test. But Lord Phillips on appeal did not agree. The Wall Street Journal loses.

But the Wall Street Journal appealed.

Lawyers for the PPA note:

The Lords held that Reynolds had been interpreted too strictly in the past: the 10 criteria, including steps taken to verify the information and the tone of the article, were pointers as opposed to hurdles for the media.

The result of the Jameel case is that the media have much more freedom when reporting matters of public interest, where it may not be possible to subsequently prove the truth of the allegations, provided that they act reasonably and in the public interest.

There is no legal definition of 'the public interest' so rely on the definition given in the PCC code of conduct - the main points being

(1) exposing crime

(2) exposing health risk to the community

(3) exposing lying and hypocrisy in public life

What the PCC actually says about the public interest is lengthy. Here it is:

interest

There may be exceptions to the clauses marked * where they can be demonstrated to be in the public interest.

1. The public interest includes, but is not confined to:

i) Detecting or exposing crime or serious impropriety.

ii) Protecting public health and safety.

iii) Preventing the public from being misled by an action or statement of an individual or organisation.

2. There is a public interest in freedom of expression itself. [CH adds - this has the nacking of the law, section 10 of the Human Rights Act]

3. Whenever the public interest is invoked, the PCC will require editors to demonstrate fully how the public interest was served.

4. The PCC will consider the extent to which material is already in the public domain, or will become so.

5. In cases involving children under 16, editors must demonstrate an exceptional public interest to over-ride the normally paramount interest of the child.

http://biztaxlaw.about.com/od/glossaryq/g/qualifiedprivilege.htm

Qualified Privilege About.com US Business Law / Taxes

By Jean Murray, About.com Guide

See More About:

qualified privilege

absolute privilege

defamation

Defamation LawyersExperienced Defamation Specialists 24 years + Experienceaustralian-defamation-lawyer.com.au

Rockhampton Family LawyerFamily Lawyers practicing in divorce, child custody and propertywww.duffieldsolicitors.com.au

Family Law FinanceFinance for Legal Fees in family law matterswww.quantumfamily.com.au

Definition:

Privilege is a special legal right or immunity granted to a person or persons. Qualified privilege is an immunity from lawsuit, usually a lawsuit for defamation, for acts committed in the performance of a legal or moral duty and acts properly exercised and free from malice. If malice can be shown, qualified privilege is not a protection against defamation.

An example of qualified privilege is the immunity from defamation for statements made in the course of an employer's duties. Another is the immunity of the press from defamation charges for statement made in good faith, unless it can be proven that they were made with malice.

Qualified privilege should not be confused with absolute privilege, which protects the person from lawsuit no matter how wrong the action might be and even if the action is committed with malice or an improper motive.

from

http://www.lawhandbook.sa.gov.au/ch14s05s05.php

Legal Services Commission of South Australia.

Qualified privilege

The defence of qualified privilege allows free communication in certain relationships without the risk of an action for defamation - generally where the person communicating the statement has a legal, moral or social duty to make it and the recipient has a corresponding interest in receiving it. Giving a reference for a job applicant, answering police inquiries, communications between teachers and parents, local councillors, officers of companies, employers and employees, or traders and credit agencies, are all relationships that are protected by qualified privilege. However, the privileged communication must relate to the business at hand - the relationship cannot be abused for the purpose of relaying gossip.

A person who is acting in defence of her or his reputation can claim qualified privilege, as long as what is said is relevant to that defence. It is also available even if what was said was untrue, as long as the required relationship exists. However, qualified privilege is not a licence to say untruths. People making statements must believe that what they say is true.

The defence of qualified privilege cannot be used if it can be proved that the defamation was motivated by malice - for discussion on malice see Fair Comment.

Government and political matters are proper subjects for public discussion and such discussion is covered by the defence of qualified privilege. To maintain the defence of qualified privilege for such publications the publication must not be motivated by malice and in determining whether there is malice in these cases the court will consider whether the publisher has acted reasonably. The publisher will have to satisfy the court that it has taken proper steps to verify the accuracy of the material and did not believe the material to be untrue and further the publisher's conduct will not be reasonable unless the publisher has sought a response from the person the subject of the publication and has published any response unless it was not practical or it was unnecessary to do so.

In order for the defence to apply, the party making an otherwise defamatory statement must be subject to a duty to make the statement, and the statement must be made to a party bearing a corresponding interest in receiving the information. Examples of circumstances in which the defence may apply include where an employer prepares a character reference for a former employee, or where a corporation makes disclosures required by a government body, such as the Australian Securities and Investments Commission. Where such communications are defamatory in nature, the employer or corporate defendant may be absolved of liability by arguing the defence of qualified privilege.

http://definitions.uslegal.com/q/qualified-privilege/

United States

Qualified Privilege Law & Legal Definition

Qualified privilege is a type of defense taken in defamation actions. An otherwise defamatory statement gets qualified privilege protection when the communication/statement is :

1) made in good faith; and

2) on a subject matter in which the person making it has an interest, or in reference to which he/she has a duty; and

3) made to a person or persons having a corresponding interest or duty, even though it contains matter which, without this privilege, would be slanderous; and

4) made without malice.

The defense of qualified privilege permits free communication in certain relationships without the risk of an action for defamation. The person communicating the statement usually has a legal, moral or social duty to make it and the recipient will have a corresponding interest in receiving it. The relationship should not be abused for the purpose of relaying untrue reports and must not be motivated by malice. The person making the statement/publisher will have to satisfy the Court that he/she has taken proper steps to verify the accuracy of the statement and believed it to be true. An employer preparing/providing a character reference for a former employee, answering police inquiries, communications between teachers and parents, local councilors, officers of companies, employers and employees, or traders and credit agencies, public discussion of government and political matters are all relationships that are protected by qualified privilege. However, this is not an absolute privilege.

http://www.lawlink.nsw.gov.au/lrc.nsf/pages/R75CHP10

The New South Wales Law Reform Commission began operation in 1966, and was formally created by statute in 1967, as the first permanent body in Australia charged with the task of proposing changes to the general law.

Where am I now? Lawlink > Law Reform Commission > Publications > 10. Qualified Privilege and the Constitutional Defence

Report 75 (1995) - Defamation

10. Qualified Privilege and the Constitutional Defence

How to purchase a copy of this report.

History of this Reference (Digest)

10.1 Qualified privilege is a defence to the publication of defamatory statements which may be false but which warrant protection from an action in defamation because the occasion on which they are made demands that they be made freely with the prospect of litigation removed. The protection is not as great as that given by absolute privilege and can be defeated if the defendant is found to be motivated by malice. At common law, the defence is available if the statement is made in the performance of any legal, moral or social duty or interest, to a person having a corresponding duty or interest to receive it.1 A common example is that of a current or former employer providing a character or professional reference for an employee (or former employee) at the request of a person proposing to make a job offer to that employee.

10.2 The common law defence is accompanied in New South Wales by a defence of statutory qualified privilege under section 22 of the Defamation Act 1974.2 Section 22 provides a defendant with a defence of qualified privilege in circumstances where:

(a) the recipient has an interest or apparent interest in having information on some subject;

(b) the matter is published to the recipient in the course of giving information to him or her on the subject; and

The effect of section 22 is to overcome the restrictions of the duty/interest requirement at common law and to focus attention on reasonableness in all the circumstances.3

10.3 The decision in Theophanous v Herald & Weekly Times4 now supplements the operation of both the common law defence of qualified privilege and s 22 of the Defamation Act 1974 (NSW) by applying the constitutional implication of freedom of political discourse to the law of defamation. The effect is to provide a defendant whose publication occurs in the course of political speech with a defence to a claim in defamation provided that the defendant can establish the elements of the defence.

10.4 The focus of this chapter is the operation of the qualified privilege and constitutional defences in respect of media defendants. This is the practical context in which the law gives rise to problems.

COMMON LAW QUALIFIED PRIVILEDGE

10.5 In order to rely on a defence of qualified privilege at common law, the person who makes a statement must have an interest or a duty (legal, social or moral), to make the statement to the person to whom it is made, and the recipient of the statement must possess an interest in receiving, or a duty to receive, the information that corresponds with the interest or duty of the person making the statement.5 The question of moral or social duty is a question on the facts of each case.6 According to traditional learning, proving reciprocity of duty and interest poses difficulties for mass media defendants who attempt to rely on the defence. Only in exceptional cases would a person have an interest or duty to publish defamatory matter to the world at large.7 Further, the defence is not absolute as it may be defeated if the plaintiff can establish that the defendant’s conduct was motivated by malice. One way to prove malice is to show that the publisher did not have an honest belief in the truth of what was published.8

10.6 In the light of the majority judgments in Stephens v WA Newspapers9 and Theophanous, the traditional understanding of common law qualified privilege now needs re-evaluation in respect of the reciprocal interest and duty requirement. Although the common law has on occasion upheld defences of qualified privilege for publications to the world at large,10 it has generally taken a restricted view of the occasions when a person has an interest or duty to publish material to the general public. However, the joint majority judgment in Theophanous now holds that the public at large has an interest in the discussion of political matters such that each and every person has an interest, of the kind contemplated by the common law, in communicating his or her views on those matters and each and every person has an interest in receiving information on those matters. Such an interest exists at all times, and it therefore follows that the discussion of political matters is an occasion of qualified privilege.11 This very substantial expansion of the range of privileged occasions was applied in a recent Victorian case.12

10.7 A more limited extension of the scope of the defence was proposed by Justice McHugh in his dissenting judgment in Stephens. Justice McHugh was of the view that the general public has a legitimate interest in receiving information concerning matters relevant to the exercise of public functions and powers vested in public representatives and officials. His Honour was also of the opinion that persons with special knowledge of the exercise of public functions or powers or the performance by public representatives or officials of their duties, will, on occasions, have a corresponding duty or interest to communicate information concerning such functions, powers and performances to members of the general public. As a result, the existing common law categories of qualified privilege should be extended to protect communications made by such persons - for example, whistleblowers and investigative journalists. Such protection should also extend to the media which have an ancillary privilege to publish such information in good faith.13

10.8 Another limited extension of qualified privilege, focusing also on the role of the media in reporting statements of public interest, was proposed by Justice Brennan in his dissenting judgment in Stephens. His Honour would attach a qualified privilege to media reports, other than those of the proceedings of public bodies, where there is a duty to inform the public in order to allow the public to perform its own proper functions as viewed from time to time. Whether or not the privilege would attach in any case depends on a balancing of four factors: the “public interest” content of the statement; the fairness and accuracy of the report; the publisher’s reasonable belief that the maker of the statement had particular knowledge of the defamatory matter; and the opportunity afforded to the defamed party to respond. The requirement that the defamed person must have been offered a right of reply is noteworthy. It is aimed (like the requirement that the publisher have a reasonable belief that the maker of the statement has particular knowledge of the defamatory matter), at providing the public with some assurance of the truth of the defamatory statement.14

SECTION 22 OF THE DEFAMATION ACT 1974 (NSW)

10.9 While the first two conditions of this section overcome the restrictions of the reciprocity requirement at common law,15 it is the interpretation of “reasonableness” which defendants (particularly media defendants) see as unduly limiting the scope of the defence. Section 22 may have been intended to provide the same protection as that available pursuant to s 17(d) and s 17(e) of the Defamation Act 1958 (NSW).16 Those sections provided a defence of qualified privilege in specific cases where the publication was in answer to an inquiry, or where the purpose of it was to provide information. They did not require any examination of the circumstances of the publication; in particular, there was no requirement for a defendant to establish belief in the truth of what was published.17 However, it was quickly established that section 22 did not have the same effect as the provisions of the 1958 Act.18 For section 22 requires that the defendant’s conduct in publishing must be reasonable in the circumstances, and this does not solely depend on the extent of the recipient’s interest in knowing the truth.

10.10 The meaning of “reasonableness” in this context was authoritatively established by the Court of Appeal in Morgan v John Fairfax & Sons Ltd.19 This decision explains the construction of s 22 (1)(c) in the following way: in circumstances where a publisher intends to convey an imputation that is found to be conveyed, the defendant must establish that it believed in the truth of that imputation; but where a defendant did not intend to convey any imputation which was in fact so conveyed, the defendant must establish that its conduct was nevertheless reasonable in relation to each imputation it did not intend to convey but which was in fact conveyed. Reasonableness in the latter case requires the court to take into account whether the defendant held a belief in the truth of the matter published, but it is not the sole factor consdered by the court.20

10.11 Some media submissions received in response to DP 32 voiced dissatisfaction with this unwarranted emphasis on proof of belief in truth. It was argued that this does not serve the public interest in the free flow of information. Generally, media submissions tended to prefer versions of statutory qualified privilege - such as those found in s 17(e) of the Defamation Act 1958 (NSW) - which do not require the reasonableness of a defendant’s conduct to depend on the defendant’s belief in the truth, but focus rather on the strength of the recipient’s interest in knowing the truth.21 Suggested reform of s 22 excluded the necessity of establishing an honest belief in the truth of any imputation held to arise; however, it was accepted that publication of matter that was known to be untrue should negate such a defence.22

10.12 A factor underlying media concerns with the interpretation of section 22 is the fear of possibly having to reveal sources in order to establish an honest belief in the truth of what is published. This issue is addressed below at paras 10.21-10.27.

THE CONSTITUTIONAL DEFENCE

10.13 In Australian Capital Television Pty Ltd v Commonwealth23 and Nationwide News Pty Ltd v Wills,24 the High Court recognised a constitutional implication of freedom of political discussion, derived from the principle of representative government which forms part of the Constitution. The majority in Theophanous and Stephens held that the constitutional implication extends in principle to State defamation laws which may otherwise restrict the freedom of the people to engage in political discussion. They were further of the opinion that existing State defamation laws do seriously inhibit freedom of communication on political matters, especially in relation to the views, conduct and suitability for office of an elected representative of Parliament.

10.14 The High Court held that, where the defendant publishes false and defamatory statements in the course of political speech, the defendant is not liable in damages in a defamation claim unless the defendant can show that: (a) it was unaware of the falsity of the matter; (b) it did not publish recklessly (that is, not caring whether the matter was true or false); and (c) the publication was reasonable in all the circumstances.25 “Reasonableness” in these circumstances requires a defendant to show that it took steps to check the accuracy of the material published, or that it was justified in publishing without checking, or that it took steps that were adequate in the circumstances.26

10.15 Theophanous provides the media with a defence to a defamation action when material is published in the course of political discussion. The efficacy and range of the defence as a “media defence” will, however, depend on a number of factors. First, as we have already discussed in this Report, the parameters of “political discussion” have yet to be determined.27 Thus, it is not yet clear whether or not the defence will only arise when the plaintiff is a member of Parliament, a parliamentary candidate or a public official.

10.16 Secondly, the meaning which the courts give to the “reasonableness” requirement of the Theophanous test will be crucial.28 Both at common law29 and pursuant to section 22,30 “reasonableness” in the context of qualified privilege normally requires an honest belief in the truth of what was published. But the focus in Theophanous was on whether adequate and appropriate steps were taken to check the accuracy of the material,31 rather than on the defendant’s belief in the truth of the material. The majority likened the implied freedom to the statutory defence of lawful excuse provided by section 377(1)(h) of the Criminal Code (Qld).32 The policy behind the Queensland defence is the encouragement and protection of freedom of discussion on a matter of public interest for the benefit of the public. The provision does not require that persons wishing to participate in the discussion of matters of public interest must satisfy themselves of the truth of the facts upon which the discussion is based.33 This seems to indicate that belief in the truth of what is published does not form part of the constitutional defence.

10.17 Thirdly, to the extent to which “political discussion” and “reasonableness” prove limiting factors, the constitutional defence may prove practically unimportant in the light of the broad view of common law qualified privilege taken by the majority in Theophanous and in Stephens v WA Newspapers.34 The joint majority judgment in Theophanous35 stated that the availability of the defence derived from the Constitution will inevitably have the consequence that the common law defence of qualified privilege will have little, if any, practical significance where publication occurs in the course of the discussion of political matters. However, this proposition is difficult to reconcile with the expansion of common law qualified privilege to cover “political discussion”.36

EVALUATION OF COMMON LAW QUALIFIED PRIVILEDGE, SECTION 22 AND THE CONSTITUTIONAL DEFENCE

10.18 The Commission has been concerned throughout this Report to ensure that reform of the law of defamation only interferes with freedom of speech where the provision of such freedom would tilt too heavily against protection of reputation. A consequence of the decision in Theophanous is a greater latitude for freedom of political speech. Deterrence of even ill-founded political statements is liable to be subversive of the basis and working of the system of representative government.37 Outside the context set by that decision, however, the balance between freedom of speech and protection of reputation needs to be weighed differently. While the Commission recognises that the media have an important role in conveying information about State agencies and public officials to the public, it does not suggest that the media should have a generally privileged status in public debate.38

10.19 Whatever the truth or falsity of the allegedly defamatory matter, providing the community with information on a topic of political discussion may override in importance any consideration of compensating damage to individual reputation, provided that the publication is a reasonable one.39 However, for some issues that fall outside the scope of “political matters”, there may not be an equivalent public interest factor (other than curiosity and scandal-mongering) which could afford similar immunity. In such cases, the protection of personal reputation may outweigh the public’s interest in the subject matter. In those cases, both the common law and s 22 require a publisher to demonstrate that the publication was reasonable by proving an honest belief in the truth of what was published. The Commission believes that this premise is correct, for freedom of speech is not unqualified and the power which it confers requires accountability.40

10.20 The Commission makes no recommendation to alter the existing common law or statutory qualified privilege defence at this stage. In the Commission’s view, any developments regarding the duty/interest requirement should be left to the common law. Given the state of flux into which the recent High Court decisions have plunged the law of qualified privilege, any codification of the common law at this stage would be premature.

REVELATION OF SOURCES

10.21 The statutory defence of qualified privilege requires a defendant to establish that the publication was reasonable. As a part of proving “reasonableness”, the publisher is usually required to establish a belief in the truth of the matter published. How a court requires a defendant to prove that belief will depend on the circumstances of each case. The defendant may be required to reveal the source of the allegedly defamatory material to show its conduct was reasonable (rather than identifying the defendant’s source generally).

10.22 In John Fairfax & Sons v Cojuangco, the High Court stated that:

It is a fundamental principle of our law, repeatedly affirmed by Australian and English courts, that the media and journalists have no public interest immunity from being required to disclose their sources of information when such disclosure is necessary in the interests of justice.41

Potentially this conflicts with a section of the Journalists’ Code of Ethics which states that journalists shall “in all circumstances ... respect all confidences received in the course of their calling”.42

10.23 Journalists believe that their ethical code creates a conscience based bar to disclosure of the name of a source where they have been provided with information on an undertaking that the identity of the source will remain confidential.43 The Code does not create any legal privilege to maintain confidentiality, and courts regard a refusal to disclose a journalist’s source as a contempt of court. Recent cases have highlighted the dilemma faced by journalists, who insist that the confidential nature of their relationship with a source is vital to the media’s role as a facilitator of free communication and outweighs the need of the court to have all relevant and admissible information before it.44

10.24 Although the “newspaper rule” allows a newspaper publisher, proprietor or editor to withhold information about the name of the writer of the article which is the subject of the action and about the sources of information supporting the article, this rule only pertains to interlocutory proceedings. It is not applicable at a defamation trial because the question of malice is often an issue and it may become necessary to identify the source in order to assess the motive behind the disclosure of the allegedly defamatory material.

10.25 After examining this specific problem in detail, the Western Australian Law Reform Commission and the Senate Standing Committee on Legal and Constitutional Affairs have recently concluded that a form of statutory judicial discretion should be introduced to excuse a journalist, in the circumstances of the particular case, from answering questions about the identity of a confidential source.

10.26 Such a discretion would balance competing public interests and would be exercised after consideration of a number of factors, including: whether the evidence about the source’s identity is essential to the issue of the case; the truth of statements made about the plaintiff; whether the witness has been given the opportunity to contact the source in order to seek a waiver; whether the communication is of such a nature that it is reasonable that it should be revealed; whether withholding evidence about the identity of the source will cause unfair prejudice to a party to the proceedings; and whether the evidence is obtainable by other means which will not add significantly to the time taken by, or the costs of the proceedings.45

10.27 While these issues are essentially ones of contempt and evidence they effect defamation proceedings and therefore require comment by the Commission. The Commission believes that the proposals outlined in para 10.25 go a long way to strike a balance between the competing public interests in the administration of justice and in maintaining a free flow of information.

Terms of reference | Participants | Executive summary | List of recommendations

1. INTRODUCTION | 2. OBJECTIVES AND CONTEXT OF DEFAMATION LAW | 3. JUDGE AND JURY

4. THE CAUSE OF ACTION | 5. THE PUBLIC FIGURE TEST | 6. REMEDIES OTHER THAN DAMAGES

14. ALTERNATIVE DISPUTE RESOLUTION | APPENDIX 1: DEFAMATION AMENDMENT BILL 1995

APPENDIX 2: LIST OF SUBMISSIONS RECEIVED | APPENDIX 3: SEMINARS AND CONFERENCES

APPENDIX 4: SELECT BIBLIOGRAPHY | TABLE OF LEGISLATION | TABLE OF CASES | INDEX

FOOTNOTES

1. Adam v Ward [1917] AC 309 at 334 per Lord Atkinson.

2. The only other Australian jurisdictions with a statutory defence of qualified privilege are Queensland and Tasmania: see Criminal Code (Qld) s 377 and Defamation Act 1957 (Tas) s 16.

3. The intention behind section 22 was not to diminish or abrogate any defence that may exist at common law in respect of a defendant having an honest belief in the truth of the statement published. A discussion on the purpose of section 22 is contained in DP 32 at paras 10.8-10.10.

4. (1994) 182 CLR 104.

5. Adam v Ward [1917] AC 309 at 334.

6. Stuart v Bell [1891] 2 QB 341 at 350.

7. Stephens v WA Newspapers (1994) 182 CLR 211 at 261 per McHugh J dissenting.

8. See Horrocks v Lowe [1975] AC 135 at 150, approved in Theophanous at 154-155 per Brennan J dissenting.

9. (1994) 182 CLR 211.

10. See Adam v Ward [1917] AC 309 and Loveday v Sun Newspapers Ltd (1938) 59 CLR 503.

11. Theophanous at 140.

12. Sporting Shooter’s Association of Australia (Vic) v Gun Control Australia and Crook (1995) 2 Media Law Reporter 83.

13. Stephens at 266.

14. Stephens at 251-253.

15. For discussion of s 22(1)(a), see Austin v Mirror Newspapers Ltd [1984] 2 NSWLR 383 at 390 and (1985) 3 NSWLR 354 at 358-10. For discussion of s 22(1)(b), see Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697.

16. See New South Wales Law Reform Commission, Report on Defamation (LRC 11, 1971) Appendix D at para 103. But compare para 105.

17. See Calwell v Ipec Australia Ltd [1973] 1 NSWLR 550 (CA); (1975) 135 CLR 321 (HC) (Defamation Act 1958 (NSW) s 17(e)).

18. See Wright v ABC [1977] 1 NSWLR 697 at 705, 712; Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 793-794, 797-798.

19. (1991) 23 NSWLR 374.

20. Morgan at 387-388 per Hunt AJA, with whom Samuels JA agreed.

21. See Nine Network Australia, Consolidated Press Holdings: Submissions. See also DP 32 at paras 9.30-9.31.

22. Australian Broadcasting Corporation Submission (27 October 1993).

23. (1992) 177 CLR 106.

24. (1992) 177 CLR 1.

25. Theophanous at 137.

26 Theophanous at 138.

27. See especially paras 2.28, 5.3-5.6.

28. For discussion, see S Walker, “The Impact of the High Court’s Free Speech Cases on Defamation Law” (1995) 17 Sydney Law Review 43 at 51-53.

29. Horrocks v Lowe [1975] AC 135 at 150; Theophanous at 154-155 per Brennan J dissenting.

30. See Morgan v John Fairfax & Sons Ltd (1991) 23 NSWLR 374 at 387. The test established in this case is subject to the exceptions set out in the cases of Barbaro v Amalgamated Television Services Pty Ltd (1989) 20 NSWLR 493, and Collins v Ryan (1991) 6 BR 2210. These exceptions were considered in DP 32 at paras 10.15-10.16.

31. This may, of course, still result in journalists’ having to disclose their sources at trial to enable plaintiffs to investigate whether the journalists did in fact check with their sources.

32. See Theophanous at 138-139.

33. Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309 at 328.

34. (1994) 182 CLR 211. See para 10.6.

35. Theophanous at 140.

36. See Sporting Shooter’s Association of Australia (Vic) v Gun Control Australia and Crook (1995) 2 Media Law Reporter 83.

37. Theophanous at 177 per Deane J.

38. M Chesterman, “The Money or the Truth: Defamation Reform in Australia and the USA” (1995) 18 UNSW Law Journal 300 at 320-322. Neither Theophanous nor Stephens suggests otherwise.

39. By contrast, allowing the plaintiff to obtain a publicised declaration of falsity without having to face a defence of privilege does not unduly chill freedom of political discussion by inhibiting contributions to it from the media. It actually enhances such discussion by ensuring that the court’s finding receives publicity: see para 6.39.

40. See para 2.31.

41. (1988) 165 CLR 346 at 354.

42. Registered Rules of the Media, Entertainment and Arts Alliance, Rule 64 (Journalists’ Code of Ethics), Item (c).

43. Australia, Senate Standing Committee on Legal and Constitutional Affairs, First Report of the Inquiry Into the Rights and Obligations of the Media: Off The Record (Shield Laws for Journalist’s Confidential Sources) (October 1994) at 8.

44. For cases, see Off the Record at Chapter 3.

45. See Off the Record at 110-112; and Western Australia, Law Reform Commission, Report on Professional Privilege for Confidential Communications (Project No 90, May 1993) at 129-130.

http://en.wikipedia.org/wiki/Fair_comment

"Fair comment From Wikipedia, the free encyclopedia"

Fair comment

From Wikipedia, the free encyclopedia

Tort law

Part of the common law series

Intentional torts

Assault · Battery

False imprisonment

Intentional infliction of

emotional distress (IIED)

Transferred intent

Property torts

Trespass (land · chattels)

Conversion · Detinue

Replevin · Trover

Defenses

Assumption of risk

Comparative negligence

Contributory negligence

Consent · Necessity

Statute of limitations

Self-defense

Defense of others

Defense of property

Shopkeeper's privilege

Negligence

Duty of care · Standard of care

Proximate cause · Res ipsa loquitur

Calculus of negligence

Rescue doctrine · Duty to rescue

Specific types

Negligent infliction of

emotional distress (NIED)

Employment-related · Entrustment

Malpractice (legal · medical)

Liability torts

Product liability · Quasi-tort

Ultrahazardous activity

Nuisance

Public nuisance

Rylands v. Fletcher

Dignitary torts

Defamation · Invasion of privacy

False light · Breach of confidence

Abuse of process

Malicious prosecution

Alienation of affections · Seduction

Economic torts

Fraud · Tortious interference

Conspiracy · Restraint of trade

Liability, remedies

Last clear chance · Eggshell skull

Vicarious liability · Volenti non fit injuria

Ex turpi causa non oritur actio

Neutral reportage · Damages

Injunction · Torts and conflict of laws

Joint and several liability

Comparative responsibility

Market share liability

Duty to visitors

Trespassers · Licensees · Invitees

Attractive nuisance

Other common law areas

Contracts · Criminal law · Evidence

Property · Wills, trusts and estates

Portals

Law

Journalism

News · Writing style

Ethics · Objectivity

Values · Attribution

Defamation

Editorial independence

Journalism school

List of

journalism articles

Areas

Arts · Business

Entertainment

Environment

Fashion · Medicine

Politics · Science

Sports · Technology

Trade · Traffic

Weather · World

Genres

Advocacy · Analytic · Broadcast

Citizen · Civic

Collaborative ·

Comics journalism ·

Community

Database · Gonzo

Investigative · Literary

Muckraking · Narrative

"New Journalism"

Non-profit journalism

Online · Opinion

Peace · Photojournalism

Scientific · Visual · Watchdog

Social impact

Fourth Estate

Freedom of the press

Infotainment · Media bias

Public relations

Press service

Yellow journalism

News media

Newspapers · Magazines

TV and radio

Internet

News agencies

Alternative media

Roles

Journalists (reporters)

Editor · Columnist

Copy editor

Meteorologist

News presenter

Photographer

Pundit/Political commentator

Category: Journalism

Fair comment is a legal term for a common law defense in defamation cases (libel or slander).

Contents

[hide]

1 United States

2 Canada

3 United Kingdom

4 References

[edit] United States

In the United States, the traditional privilege of "fair comment" is seen as a protection for robust, even outrageous published or spoken opinions about public officials and public figures. Fair comment is defined as a "common law defense [that] guarantees the freedom of the press to express statements on matters of public interest, as long as the statements are not made with ill will, spite, or with the intent to harm the plaintiff".[1]

The defense of "fair comment" in the U.S. since 1964 has largely been replaced by the ruling in New York Times Co. v. Sullivan, 376 U.S. 254 (1964), (U.S. Supreme Court). This case relied on the issue of actual malice, which involves the defendant making a statement known at the time to be false, or which was made with a "reckless disregard" of whether the statement was true or false. If "actual malice" cannot be shown, the defense of "fair comment" is then superseded by the broader protection of the failure by the plaintiff to show "actual malice."

Each state writes its own laws of defamation, and the laws and previously decided precedents in each state vary. In many states, (including Alabama where the case of Times v. Sullivan originated), the "fair comment" defense requires that the "privilege of 'fair comment' for expressions of opinion depends on the truth of the facts upon which the comment is based" according to U.S Supreme Court Justice Brennan who wrote the ruling in Times v. Sullivan.[2]

It is still technically possible to rely on the common law defense of "fair comment" without referring to the "actual malice" standard set by the Supreme Court of the United States but that would only be a likely course of action when the defendant is absolutely sure that the facts upon which the opinion of the defendant was based were true, or that any falsehoods are not defamatory. If those facts are not absolutely true (and the actual malice standard is not taken into account) then the defendant could be sued by the plaintiff for damages, although the plaintiff would need to establish to the satisfaction of a jury that the statements were defamatory, and that the defandant published or made them.

The actual malice standard was set by the U.S. Supreme Court in the case New York Times v. Sullivan. This case is a powerful precedent which has a major impact on defamation cases in the state courts.

"Actual malice" removes the requirement of being faultless in the reporting of the facts by the defendant. (Under the law prior to this decision any false statement could, if found to be defamatory, be grounds for damages.) Instead it raises the question of whether factual errors were made in good faith. "Actual malice" means then that the defendant intentionally made false statements of alleged facts, or recklessly failed to verify alleged facts when any reasoanble person would have checked. If it is held that the defendant made intentionally false statements of fact, that will form a powerful argument that any statements of opinion based upon those facts were made with malice. If the plaintiff can prove malice on the part of the defendant the common law defense of "fair comment" is defeated.

The "actual malice" standard only applies when the statement is about a "public official", or a "public figure", or in some cases about a "matter of public interest". When it does apply it offers so much more protection to the defendant that it would be very rare for the defendant to assert "fair comment" instead. When the allegedly defamatory statement is about a purely private person, who is not a "public figure" in any way, the defandant may need to resort to the defence of "fair comment" instead. Also, the "actual malice" standard is specifically part of United States law, derived from the U.S. Constitution. The defense of "fair comment" is a part of the older common law, and so might apply in non-U.S. jurisdictions which share the common-law tradition, such as the United Kingdom and the British Commonwealth.

[edit] Canada

In Canada, for something to constitute fair comment, the comment must be on a matter of public interest (excluding gossip), based on known and provable facts, must be an opinion that any person is capable of holding base on those facts, and with no actual malice underlying it. The cardinal test of whether a statement is fair comment is whether it is recognizable as an opinion rather than a statement of fact, and whether it could be drawn from the known facts. There was formerly a rule stating that the opinion must be honestly held by the publisher (See Chernesky v. Armadale Publications Ltd. [1978] 6 W.W.R. 618 (S.C.C.)) but this rule was changed to one requiring that the opinion is capable of being held by anyone. (See WIC Radio Ltd. v. Simpson [2008] 2 S.C.R. 420)

[edit] United Kingdom

Fletcher-Moulton LJ said in Hunt v Star Newspaper [1908] 2 KB 309, Tab 3, at 319-320, CA:

“The law as to fair comment, so far as is material to the present case, stands as follows: In the first place, comment in order to be justifiable as fair comment must appear as comment and must not be so mixed up with the facts that the reader cannot distinguish between what is report and what is comment: see Andrews v. Chapman. [FN16] The justice of this rule is obvious. If the facts are stated separately and the comment appears as an inference drawn from those facts, any injustice that it might do will be to some extent negatived by the reader seeing the grounds upon which the unfavourable inference is based. But if fact and comment be intermingled so that it is not reasonably clear what portion purports to be inference, he will naturally suppose that the injurious statements are based on adequate grounds known to the writer though not necessarily set out by him. In the one case the insufficiency of the facts to support the inference will lead fair-minded men to reject the inference. In the other case it merely points to the existence of extrinsic facts which the writer considers to warrant the language he uses. In this relation *320 I must express my disagreement with the view apparently taken by the Court of Queen's Bench in Ireland in the case of Lefroy v. Burnside [FN17], where the imputation was that the plaintiffs dishonestly and corruptly supplied to a newspaper certain information. The Court treated the qualifications "dishonestly" or "corruptly" as clearly comment. In my opinion they are not comment, but constitute allegations of fact. It would have startled a pleader of the old school if he had been told that, in alleging that the defendant "fraudulently represented," he was indulging in comment. By the use of the word "fraudulently" he was probably making the most important allegation of fact in the whole case. Any matter, therefore, which does not indicate with a reasonable clearness that it purports to be comment, and not statement of fact, cannot be protected by the plea of fair comment. In the next place, in order to give room for the plea of fair comment the facts must be truly stated. If the facts upon which the comment purports to be made do not exist the foundation of the plea fails. This has been so frequently laid down authoritatively that I do not need to dwell further upon it: see, for instance, the direction given by Kennedy J. to the jury in Joynt v. Cycle Trade Publishing Co. [FN18], which has been frequently approved of by the Courts.”

In Branson v Bower [2002] QB 737, at p 748, para 29, Eady J said:

“The comment must be upon ‘facts truly stated’ [29] A commentator must not deliberately distort the true situation. That would be relevant on "malice" even according to Lord Nicholls's criterion. It would not be honest. The matter of distortion (whether dishonest or otherwise) may also come into play, however, at the stage of the objective test, because one cannot decide whether a hypothetical commentator could hold an opinion in a vacuum. Even at this point, it is surely necessary to test the matter against some factual assumptions.”

Whether the comment is fair, Diplock J (as Lord Diplock then was) said in a summing up to jury in Silkin v. Beaverbrook Newspapers Ltd. and Another [1958] 1 WLR 743, Tab 5, at 749:

“Would a fair-minded man holding strong views, obstinate views, prejudiced views, have been capable of making this comment? If the answer to that is yes, then your verdict in this case should be a verdict for the defendants. … If you were to take the view that it was so strong a comment that no fair-minded man could honestly have made it, then the defence fails and you would have to consider the question of damages.” See also Halsbury’s Laws of England, Vol 28, 4th ed (Reissue:1997) , para 145.

In relation to malice in the context of fair comment (which is different from the malice in the context of qualified privilege), Lord Nicholls of Birkenhead NPJ said in Albert Cheng v Tse Wai Chun (2000) 3 HKCFAR 339 at p 360I to 361D:

“My conclusion on the authorities is that, for the most part, the relevant judicial statements are consistent with the views which I have expressed as a matter of principle. To summarise, in my view a comment which falls within the objective limits of the defence of fair comment can lose its immunity only by proof that the defendant did not genuinely hold the view he expressed. Honesty of belief is the touchstone. Actuation by spite, animosity, intent to injure, intent to arouse controversy or other motivation, whatever it may be, even if it is the dominant or sole motive, does not of itself defeat the defence. However, proof of such motivation may be evidence, sometimes compelling evidence, from which lack of genuine belief in the view expressed may be inferred. Proof of motivation may also be relevant on other issues in the action, such as damages. It is said that this view of the law would have the undesirable consequence that malice would bear different meanings in the defences of fair comment and qualified privilege, and that this would inevitably cause difficulty for juries. I agree that if the term 'malice' were used, there might be a risk of confusion. The answer lies in shunning that word altogether. Juries can be instructed, regarding fair comment, that the defence is defeated by proof that the defendant did not genuinely believe the opinion he expressed. Regarding qualified privilege, juries can be directed that the defence is defeated by proof that the defendant used the occasion for some purpose other than that for which the occasion was privileged. This direction can be elaborated in a manner appropriate to the facts and issues in the case.”

[edit] References

Share on Facebook Share on Facebook

HaigReport Themes

Themes of Websites
for the HAIG REPORT: Group of Websites:
[We expect, in time, to have all of the thousands of pages on the HAIG REPORT: group of websites accessible from this Menu of THEMES. Eventually, there will be 20 themes, each with an average of 15 to 20 websites/domains/directories, with each website/domain having an average of 20 pages. This would equate to 20 x (15 to 20) x 20 = 6,000 to 8,000 pages. This menu of Themes will be included near the bottom of each page, in time. With one line of code, strategically placed, this Menu of Themes is now on thousands of pages. We are continually and progressively adding pages to this Menu of Themes of website Menus.]

commonheader.php

Reg. Office: 254 Hawken Drive, St Lucia, Qld. 4067, Australia.
Editor-in-Chief: Russell G H Mathews BCom BSc LLB BA EMAIL us anytime: Please using

The LATEST ADDITIONS are added to the top:

Now here are the THEMES &:

NEW PODCAST

HaigReport's International Live Streaming Podcasts:

About HaigReport Group of Websites including
Vote One Russell Mathews:

Worldwide Terrorist catholic MAFIA = catholic Order of Malta Mafia:

Commonwealth of Australia Knowingly Employs LIARS, CHEATS and CRIMINALS:

Government Corruption Infecting Corporates; ASX:

New ADDITIONAL platform; Printed Distributed HaigReport NEWSPAPER:

Self Help Law: Do your own Legals/Law:

International: Corrupt Politics & Corrupt religion:

Russell Mathews [BCom BSc LLB & BA] Commentary additional to the rest of these Websites:

Legal Rights, & BLACKLISTS of parasite residents & tenants in rental accommodation:

RAMPANT POLICE CORRUPTION Exposed by HaigReport Websites; :

Other public sector corruption Exposed by HaigReport Websites:

RELIGION Corruption CRIME & PAEDOPHILIA Exposed by HaigReport Websites:

Qld Govt Translink wankers & pony spankers Exposed by HaigReport Websites:

Corrupt JUDGES, COURTS, & TRIBUNALS Exposed by HaigReport Websites:

Corrupt LAWYERS Exposed by HaigReport Websites:

Corrupt POLITICANS Exposed by HaigReport Websites:

University of Qld Fraud & Corruption Exposed by HaigReport Websites:

Corruption at other universities; Exposed by HaigReport Websites:

Expose' of Other CORRUPTION, including TELSTRA, under influence of public sector parasites, as exposed by the HaigReport Group of Websites:

Business Promoted by HaigReport Websites:

Finance by HaigReport Websites:

This page is part of the Internet presence of

Russell G H Mathews BCom BSc LLB BA
View list of SOME of my WEBSITES and Bulletin Boards
Email: http://HaigReport.com/eml.html

SEE WHAT I PLAN TO DO ABOUT IT!

CLICK on image => My Election HOMEPAGE